Benjamin Kiiru Wanjau v Samuel Nelson Mwangi Wanjau & another [2007] KECA 498 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that once judgment is entered on a tribunal award, you cannot appeal or review it unless the decree exceeds or departs from the award.
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 superior court had power to refer the dispute to the Muranga Land Disputes Tribunal/arbitration when the referral was not made on the application of the parties
- 2.Whether the Land Disputes Tribunal had jurisdiction over a dispute concerning title to and trust of land
- 3.Whether the application for review before Juma, J was misconceived given that judgment had been entered in terms of the award under Order XLV rule 17(2) of the Civil Procedure Rules
Key legal issues
#Jurisdiction of the Tribunal over the referred dispute
The Court held that the jurisdiction question did not arise because the Tribunal members were picked as arbitrators and the appellant, being represented, participated in the arbitration; the superior court acted within its powers in making the referral.
The record showed the appellant was represented by counsel on 21st March 1996 when the dispute was referred, and he later participated in the arbitration and sought to set aside the award. The Court reasoned that the Tribunal members were in effect chosen as arbitrators rather than exercising statutory jurisdiction, so the referral could not be attacked for want of the Tribunal's statutory mandate.
Bar on appeal from a decree entered in terms of an award
Order XLV rule 17(2) bars appeal from a decree entered in terms of an award except where the decree is in excess of or not in accordance with the award; the appellant showed neither, so the review application was properly dismissed.
Judgment had been entered in terms of the filed award, the decree had been executed (the land subdivided and new titles issued), and the appellant's application to set aside the award had been dismissed. Nothing demonstrated that the decree exceeded or departed from the award, leaving the High Court without power to review and this Court without an arguable appeal.
Form of memorandum of appeal
The Court noted, for guidance only, that the grounds of appeal did not conform with rule 84(1) of the Court of Appeal Rules requiring concise, distinct heads without argument or narrative.
The Court reproduced rule 84(1) and observed that the lengthy, argumentative grounds as drafted failed the requirement that a memorandum of appeal set out concisely, under distinct heads, the points alleged to have been wrongly decided. However, the Court did not strike out the appeal on this basis and proceeded to determine it on the merits.
Legal principles established
#- Where judgment has been entered in terms of an arbitral or tribunal award, no appeal lies from the resulting decree except in so far as the decree is in excess of or not in accordance with the award.
- A party who was represented by counsel when a matter was referred to arbitration and who took part in the arbitration proceedings cannot later complain of the referral; where the tribunal members act as arbitrators chosen for the parties, the question of the tribunal's statutory jurisdiction does not arise.
Court orders
#- 1.The appeal is dismissed with costs 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.C.C. No. 5 of 1995
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal Rules from the High Court ruling dismissing the appellant's application for review
Relief refused
#The appellant's appeal against the dismissal of his application for review
Judgment had been entered in terms of the Tribunal award and no appeal lies from such a decree except where it is in excess of or not in accordance with the award; the decree was not shown to be either, and the appellant was represented when the matter was referred and had taken part in the arbitration
Costs
The appeal was dismissed with costs to the respondents.
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 the present case the judgment has been entered in terms of the award filed. It has not been shown that the decree was in excess of or not in accordance with the award.
Consequently the issue of jurisdiction of the Tribunal does not arise. The superior court was within its powers to refer the matter as it did.
In view of the foregoing we find no merit in this appeal and we order that the same be, and, is hereby dismissed with costs to the respondents.
It is time the appellant was told that this dispute must come to an end. He has reached the end of his journey as far as this dispute is concerned.
Issues in the judgment
#The respondent is named in the cause title as 'JONES GIBSON MWANGI KAMAU' but referred to in the body as 'James Gibson Mwangi Kamau'.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Space Contractors & Suppliers Investment Limited v Public Procurement Administrative Review Board & 23 others (Civil Appeal E169 of 2023) [2023] KECA 1457 (KLR)[2023] KECA 1457 (KLR)27 Nov 2023applied
- Mwiandi v Kathuni (Environment and Land Appeal E013 of 2021) [2022] KEELC 3291 (KLR)[2022] KEELC 3291 (KLR)6 Jun 2022
Cite this brief
#Cite this brief
Caselaw, "Benjamin Kiiru Wanjau v Samuel Nelson Mwangi Wanjau & another [2007] KECA 498 (KLR)", Case Analysis (2007). Civil Appeal 161 of 2003. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/498/eng@2007-02-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.