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Court of AppealPartially AllowedCivil Appeal 141 of 2004

Chumo Arap Songok vDavid Kibiego Rotich [2006] KECA 106 (KLR)

Court of Appeal of Kenya
13 October 2006
ROR. S. C. OmoloJOJ. W. Onyango OtienoWDW. S. Deverell
5,056 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal voided a magistrate's referral of a money dispute to elders, confirming courts cannot decide issues parties never raised in their pleadings.

What this practically means

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Executive summary

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This second appeal arose from a simple contract claim of Kshs.1,340/= for the wrongful 'dismissal' of the respondent's tractor, filed in the Chief Magistrate's Court at Eldoret in 1982. On the hearing date the Senior Resident Magistrate, on his own assumption that the claim involved land, referred the suit to a panel of elders under Section 9A of the Magistrates' Jurisdiction (Amendment) Act 1981. The elders returned an award concerning surveying of shareholders' acreage, which was adopted as an order of the court in 1985 without compliance with Sections 9D and 9E. In 1985 the respondent applied to set aside the award; in 2001 the parties consented to setting it aside, and when the respondent sought review of that consent, the Chief Magistrate dismissed the review. The High Court (Gacheche J) partly allowed the respondent's first appeal, holding the award should remain the record of the court since prerogative orders had not been sought. The Court of Appeal allowed the appellant's appeal, holding the reference to the elders was a nullity because the pleadings disclosed no land dispute; the adoption of the award was procedurally invalid; the consent orders setting aside the award were valid, consent orders having contractual effect; and the High Court, having found the misdirection, erred in leaving the invalid award on the record rather than exercising its inherent jurisdiction. The High Court decision was set aside, the Chief Magistrate's ruling restored, the 1982 case ordered set down for hearing on priority, and each party ordered to bear its own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Senior Resident Magistrate's reference of the suit to a panel of elders under Section 9A of the Magistrates' Jurisdiction (Amendment) Act 1981 was valid, given that the pleadings disclosed no land dispute
  2. 2.Whether the elders' award was validly made an order of the court on 8th March 1985, in particular as to compliance with Sections 9D and 9E of the Act
  3. 3.Whether the consent orders of 19th October 2001 setting aside the elders' award were validly entered and whether the Chief Magistrate was right to refuse their review
  4. 4.Whether the learned Judge of the High Court erred in leaving the elders' award on the record despite finding the reference to the tribunal a misdirection, and whether the court's inherent jurisdiction should have been invoked to correct the illegality

Key legal issues

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01

Validity of the reference of the suit to the elders

Holding

The reference was a nullity because neither the plaint, amended plaint nor defence raised any land dispute within Section 9A; no party applied for the reference and the elders in fact determined an unrelated acreage question

Reasoning

The pleadings claimed only Kshs.1,340/= for wrongful 'dismissal' of a tractor and special damages. The magistrate referred the suit to elders on his own assumption it involved land, without any party applying or suggesting a land issue. The elders' eventual decision concerned surveying shareholders' acreage and had no bearing on the contract claim before the court. Both parties later affirmed in affidavits that there was no land dispute.

p. 6
02

Validity of the adoption of the elders' award as an order of the court

Holding

The adoption on 8th March 1985 was invalid: Section 9D(4)'s requirement of thirty days' notice to parties before entering judgment was not complied with, there was no evidence the order was requested by either party as required by Section 9E, and the award did not touch the issues before the court

Reasoning

The award was made an order of the court without evidence of the statutory notice or of a party's request. The award itself was not conclusive even on the acreage it addressed, as it merely directed that a surveyor be hired, and some shareholders were not parties. Being made an order rather than a judgment, no decree could issue from it.

p. 6
03

Validity of the consent orders setting aside the elders' award

Holding

The consent orders of 19th October 2001 were valid; consent orders have contractual effect and can only be set aside on grounds justifying setting aside a contract, which were not established, and an advocate has ostensible authority to consent

Reasoning

The application for review of the consent orders was based on lack of instructions and misapprehension by the respondent's advocate. The learned Chief Magistrate considered and rejected these grounds. The Court of Appeal held the consent was lawful because it set aside an invalid decision, and that the procedural defect in the originating application (wrong order cited) was a mere irregularity causing no prejudice.

p. 7
04

The High Court's failure to correct the illegality on the record

Holding

Having found the reference to the tribunal a misdirection, the learned Judge erred in leaving the elders' award on the record; she should have used the court's inherent jurisdiction under Section 3A to reverse the invalid orders

Reasoning

The Judge made specific findings that the suit was based on breach of contract and that the subordinate court misdirected itself, yet held the award remained the record of the court because parties had not invoked the correct procedure. The Court of Appeal held that a court must not ignore an illegality it has found; substantive justice required the record be put right by reversing the wrong orders.

p. 8

Legal principles established

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  • A suit may only be referred to a panel of elders under Section 9A of the Magistrates' Jurisdiction (Amendment) Act 1981 where the pleadings disclose a land dispute; a reference by a magistrate's own assumption without any party applying is a nullity
  • Parties are bound by their pleadings and judgment must be pronounced only on issues arising from the pleadings, unless a matter is made an issue through evidence and submissions
  • A consent judgment or order has contractual effect and can only be set aside on grounds which would justify setting aside a contract
  • An advocate has ostensible authority to compromise a suit or consent to judgment so far as the opponent is concerned
  • A superior court is not powerless in the face of an illegality leading to an invalid order by a subordinate court and should exercise its inherent jurisdiction under Section 3A of the Civil Procedure Act to do substantive justice and set the record right
  • An elders' award that does not affect or touch on the issues before the court ought not to be made an order of the court; and an award made an order (not a judgment) yields no decree

Court orders

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  1. 1.Appeal allowed
  2. 2.The decision of the superior court dated and delivered at Eldoret on 12th May 2004 is set aside
  3. 3.The ruling of the Chief Magistrate delivered on 21st December 2001 is restored
  4. 4.Civil Case No. 373 of 1982 before the Chief Magistrate's Court at Eldoret to be set down for hearing on a priority basis
  5. 5.Each party to bear his own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

RO
majority
JO
majority
WD
majority
On appeal from
High Court of Kenya at Eldoret
H.C.C.C. No. 6 of 2002
Jurisdiction invoked
Second appeal to the Court of Appeal under the Civil Procedure Act (first appeal from the subordinate court partly allowed and partly dismissed by the High Court)

Relief refused

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Respondent's submission that the application to set aside the award was improperly before the court as it was brought under the wrong procedural rule (Order 9A rule 10)

A mere irregularity causing no prejudice cannot defeat justice, and the irregularity was in the respondent's own application to which the appellant consented

p. 7

Respondent's argument that the consent setting aside the award was barred by Section 4(4) of the Limitation of Actions Act

The application to set aside the award was itself made within twelve years, so the consent founded on it was not time-barred

p. 7

Costs

Each party to bear his own costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It is allowed. The decision of the superior court dated and delivered at Eldoret on 12th May 2004 is set aside. The ruling of the Chief Magistrate delivered on 21st February 2001 is restored. The Civil Case No. 373 of 1982 before the Chief Magistrate Court at Eldoret be set down for hearing on a priority basis.
p. 8Final orders - disposition of the appeal
In view of what we have stated above, we order each party to bear his own costs.
p. 8Costs order
We have no hesitation in stating that that decision to refer the matter to the elders was wrong in law and was a serious misdirection. That reference of the suit to the elders was in our view, not valid.
p. 6Invalidity of reference to elders under Section 9A
It is now well settled law that a consent judgment or order has contractual effect and can only be set aside on grounds which would justify setting a contract aside
p. 7Consent orders and their contractual effect
She was not powerless in the face of an illegality in law leading to an invalid order being made by the subordinate court. Hers was a court of justice and had to do substantive justice
p. 8Inherent jurisdiction to correct illegality
It should be noted that in any event, the elders' award was not made a judgment of the court. It was made an order of the court. That is important as no decree could issue from the same.
p. 8No decree issues from an award adopted as an order

Issues in the judgment

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minor

The court's orders state that the Chief Magistrate's ruling 'delivered on 21st February 2001' is restored, but earlier in the judgment the ruling is twice described as delivered on 21st December 2001

minor

The judgment records an eviction order 'dated 22nd August 1986' but elsewhere refers to orders of '13th August 1986' being set aside by consent

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (8)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Chumo Arap Songok vDavid Kibiego Rotich [2006] KECA 106 (KLR)", Case Analysis (2006). Civil Appeal 141 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/106/eng@2006-10-13

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.