Joseph Mwangi Macharia v Andriano Mugo Wanjohi & another [2004] KECA 98 (KLR)
The bottom line
#Kenya's Court of Appeal upheld an elders' arbitration award on a family estate, ruling parties can't dodge consensual arbitration through technicalities.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the arbitration award was a nullity because the confirmed grant of letters of administration had not first been revoked before the dispute was referred to arbitration, with the alleged result of two conflicting decisions on the record.
- 2.Whether the award was rendered a nullity by being filed outside the period fixed by the reference order.
- 3.Whether the appellant was denied an opportunity to be heard by the arbitrators, contrary to the rules of natural justice.
Key legal issues
#Whether an award on a consent reference is a nullity because an application to revoke a confirmed grant was pending and the grant had not first been revoked.
No. The reference was by consent of all parties under Order 45 rules 1 and 2 and the court could properly refer the question of entitlement to the estate without first revoking the grant. The award is not a judgment of the court until judgment is entered upon it under Order 45 rule 17, and any such judgment would deal only with distribution, a schedule to the grant, so at no time would there be two conflicting decisions on the record.
The dispute referred by consent on 12 June 1997 was who, among the parties, was entitled to the estate of Miatu Karimi and, arising from that, whether the letters of administration issued to the first respondent should be revoked. Order 45 rules 1 and 2 were satisfied and all parties, including the grant holder, consented. The award itself did not become the judgment of the court until Order 45 rule 17 was satisfied; that stage had not been reached, so no conflict of decisions arose. The ground was also not canvassed before the superior court.
Whether the award was a nullity for having been filed outside the period fixed by the reference order.
No. The proposition in Bagwasi Nyangao v Omosa Nyakwara was accepted - failure to file an award within the stated period without an extension renders it a nullity - but the facts were distinguishable: the court extended time once by consent, the parties thereafter repeatedly extended the dates by consent, signing the record, all parties asked for the award to be read on 8 July 1998, and the arbitration proceedings had begun within the original ninety days.
Juma J found on the record that the parties attended the registry on various dates and by consent extended the time for filing the award, signing the record to that effect; the Court agreed with his sentiments and conclusion in full. Unlike Bagwasi, where the arbitrator embarked on the arbitration only after the allotted time had lapsed without extension, here the arbitrator had started the proceedings by August 1997, within the ninety days from 12 June 1997, so the only question was the filing date. Nothing turned on the ground.
Whether the appellant was denied an opportunity to be heard by the arbitrators, vitiating the award for breach of natural justice.
No. The record showed that the appellant and the second respondent were before the arbitrator on all occasions the matter was heard, their witnesses gave evidence, and the appellant simply chose not to give evidence himself; he had only himself to blame and the ground had no merit.
The first respondent told the Court that all parties were given a chance to be heard, that the appellant was present at the hearings, that his witnesses gave evidence, and that his elders took part in the arbitration; the second respondent confirmed the same. The Court perused and analysed the record itself as the first appellate court and confirmed the appellant attended with the second respondent throughout. Having elected not to testify, he could not assert a breach of the audi alteram partem rule.
Legal principles established
#- An award made on a consent reference under Order 45 is not a judgment of the court until the court enters judgment upon it under Order 45 rule 17; its mere existence on the record alongside an unrevoked grant creates no conflicting decisions and is not a nullity.
- Where all parties to a pending revocation application, including the holder of the confirmed grant, consent to refer the question of entitlement to a deceased's estate to arbitration, the court may properly order the reference without first revoking the grant.
- Failure to file an award within the period fixed renders it a nullity only in the absence of an agreement or order extending time; extensions by consent of all parties need not be embodied in a written consent filed in court.
- A party who attends arbitration and calls witnesses but elects not to give evidence cannot later complain of a breach of the right to be heard.
- A first appellate court is enjoined to peruse and analyse the record itself before determining the appeal.
Court orders
#- 1.Appeal dismissed.
- 2.Costs of the appeal awarded to the respondents.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nyeri
- H.C. Misc. Appl. No. 26 of 1997
- Jurisdiction invoked
- Not stated in the judgment; the matter came before the Court of Appeal as a first appeal from the ruling and orders of the High Court at Nyeri, no specific constitutional or statutory provision conferring jurisdiction being cited.
Relief refused
#Declaration that the award was a nullity as the confirmed grant had not first been revoked before reference to arbitration, resulting in two conflicting decisions on the record.
The reference was made by consent of all parties, including the grant holder, under Order 45 rules 1 and 2; the award is not a judgment of the court until judgment is entered upon it under Order 45 rule 17, so no two conflicting decisions could exist; the ground was in any event not canvassed before the superior court.
Setting aside of the elders' award on the ground that it was filed out of time.
The court extended time once by consent; thereafter all parties repeatedly extended the filing dates by consent, signing the record, and on 8 July 1998 all parties asked that the award be read; Bagwasi was distinguished because the arbitration proceedings had commenced within the original ninety days.
A finding that the arbitrators misconducted themselves by not affording the appellant a hearing.
The record showed the appellant was before the arbitrator on all occasions together with the second respondent, his witnesses gave evidence, and he chose not to testify himself.
Costs
The respondents will have the costs of the appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In conclusion, this appeal must fail. It is dismissed. The respondents will have the costs of the appeal.
The award is not in itself a judgment of the Court. It only becomes a judgment after the Court enters a judgment upon it and in this case that stage had not yet been reached.
so that at no time will there exist two conflicting decisions on the record.
In our view, there was no need at that time to first revoke the grant and then refer the question of distribution to the arbitration
failure to file the award within the stated period in the absence of an agreement or order to extend it, renders the award a nullity
We do not think the parties needed to write consent letter every time and file it with the court as evidence of their intention.
He apparently did not prefer to give evidence. That being the case, he has only himself to blame.
We have perused and analysed the record in respect of this appeal as we are enjoined to do as the first appellate court.
Issues in the judgment
#The High Court case number is internally inconsistent: the appeal heading states the appeal is from H.C.MISC. APPL. NO. 26 OF 1997, while the body records the revocation summons as filed in Misc. Civil Application No. 269 of 1997; the heading number is likely a slip for 269 of 1997.
The date the award was filed is stated inconsistently within the judgment: the parties asked for the award 'filed there on 17.2.1998' to be read and the Court later states 'The award was filed on 17th February, 1998', yet the same passage records 'the award filed on 17th July 1998 was read to parties'. The February date is the one the Court relied on.
Names are spelled inconsistently: the second respondent appears as 'GACHIBO' in the heading and 'GACIBO' in the quoted consent order, and the authority relied on appears as 'Omosa Nyakwara' on first mention but 'Omwa Nyakwara' later.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Mwangi Macharia v Andriano Mugo Wanjohi & another [2004] KECA 98 (KLR)", Case Analysis (2004). Civil Appeal No. 197 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2004/98/eng@2004-05-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.