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Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Appeal No. 59 of 2016

Ananias N. Kiragu v Eric Mugambi & 2 others [2017] KECA 128 (KLR)

Court of Appeal of Kenya
7 December 2017
1,883 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that an elders' award cannot end a court case unless all parties agreed in advance to be bound by it.

What this practically means

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Executive summary

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This ruling of the Court of Appeal at Malindi (Visram, Karanja and Koome, JJ.A) determined a single issue: whether the Court should refer to the High Court for adoption an award by the National Supreme Council of Njuri Ncheke Ya Ameru Elders dated 21st February 2017. The underlying dispute is between a father and his three sons over occupation of land at Mtwapa, being Subdivision No. 655 (Original No. 539/39) Section 111 MN. The father's suit before the ELC at Malindi was still pending; an interlocutory injunction ruling by Angote J delivered on 1st April 2016 maintaining the status quo was under appeal. At a hearing on 23rd November 2016, both parties requested that the appeal be taken out of the hearing list to allow them to explore resolution before the Njuri Ncheke forum. An award was filed on 3rd February 2017, but the respondents refused to sign it or consent to its adoption. The appellant then moved the Court under Article 159(2)(c) of the Constitution and Sections 3, 3A and 3B of the Appellate Jurisdiction Act seeking to have the appeal deemed wholly disposed of by the elders' determination. The Court acknowledged the constitutional mandate to encourage alternative dispute resolution but held that parties who submit to an informal ADR forum must consent to be bound by the outcome. There was no executed arbitration agreement, no court-ordered arbitration under Order 46 of the Civil Procedure Rules, and no reference emanating from the High Court. A non-consensual elders' award could not replace determination of a pending appeal; a compromised appeal must instead be withdrawn by consent under Rule 96 with settlement terms recorded in the High Court. The application was dismissed with no order as to costs, the parties being at liberty to fix the appeal for hearing. This ruling binds lower courts to the principle that adoption of an ADR award requires party consent or an arbitration agreement.

Questions the Court framed

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

  1. 1.Whether the Court should refer to the High Court for adoption the award of the National Supreme Council of Njuri Ncheke Ya Ameru Elders dated 21st February 2017
  2. 2.Whether a court can compel parties to accept an award from an alternative dispute resolution forum to which they submitted without a binding arbitration agreement or consent to be bound

Key legal issues

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01

Whether the Court could adopt or refer for adoption the Njuri Ncheke award in a pending appeal

Holding

The application lacked merit; the Court cannot compel parties to accept an award from an informal ADR forum where there is no arbitration agreement or consent to be bound, and an appeal can only end by withdrawal under the Rules, dismissal or determination

Reasoning

The Court noted Article 159(2)(c) mandates encouragement of ADR, but parties who referred the matter to the elders did not sign a consent to be bound by the outcome. There was no executed arbitration agreement, no court-ordered arbitration under Order 46 of the Civil Procedure Rules, and no reference emanating from the High Court. The Court's appellate jurisdiction is confined to correcting errors or affirming orders; a non-consensual elders' award cannot replace an appellate determination. If parties wished to compromise the appeal, the proper route was withdrawal by consent under Rule 96, with settlement terms recorded in the High Court.

p. 3
02

Effect of Article 159(2)(c) on court-annexed and voluntary ADR

Holding

Article 159(2)(c) obliges courts to promote alternative dispute resolution, but it does not override the requirement of party consent to be bound by an ADR outcome

Reasoning

The Court acknowledged the constitutional mandate to encourage settlement outside court and had itself, at the parties' request, taken the appeal out of the hearing list to allow exploration of ADR. However, the constitutional provision operates within the framework of party autonomy: binding effect attaches only where parties consent to the forum's outcome or there is an arbitration agreement under the Arbitration Act. The respondents' refusal to sign the award meant the Court could not treat the dispute as resolved.

p. 3

Legal principles established

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  • Where parties submit a court-listed matter to an alternative dispute resolution forum, they must agree by consent to be bound by the outcome; a court cannot compel adoption of an award absent such consent
  • An arbitral award binds parties only where there is an agreement to submit the dispute to arbitration or an arbitration clause; informal forum awards do not bind absent consent
  • An appeal pending before the Court of Appeal can only be disposed of by withdrawal/consent under the Rules, dismissal, or hearing and determination; it cannot be disposed of by a non-consensual informal award

Court orders

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  1. 1.The appellant's Notice of Motion dated 30th June 2017 is dismissed
  2. 2.No order as to costs
  3. 3.Parties at liberty to proceed with the hearing of the appeal, to be fixed for hearing at the Registry

The bench

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

majority
majority
Martha Karambu Koome
M.K. KoomeJA
Currently serving
majority
On appeal from
Malindi Environment and Land Court (ELC)
ELC No. 101 of 2015
Jurisdiction invoked
Appellate Jurisdiction Act, Sections 3, 3A, 3B; Article 159(2)(c) of the Constitution invoked in the application

Relief refused

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Referral of the Njuri Ncheke award to the High Court for adoption and disposal of the appeal

There was no arbitration agreement or consent to be bound; the process was not a court-aided arbitration under the Civil Procedure Rules or the Arbitration Act, and the award cannot replace determination of a pending appeal

p. 3

Costs

No order as to costs, each party bearing their own costs as this is a family dispute between a father and his sons

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.

We order it dismissed with no order as to costs as unfortunately this is a family dispute between a father and his sons. The parties are at liberty to proceed with the hearing of the appeal which should be fixed for hearing at the Registry.
p. 3Final orders - dismissal of the application
the award of the elders which is not by consent of the parties cannot replace a determination of an Appeal
p. 3Non-consensual ADR award cannot dispose of a pending appeal
There was no arbitration agreement and the alternative forum was not conducted under the Civil Procedure Rules or the Arbitration Act.
p. 3Requirements for a binding arbitral award
if the alternative forum is facilitated by court, parties thereto must adhere to an agreement/or consent to refer the matter to the alternative forum and to be bound by the outcome
p. 3Consent as prerequisite to binding ADR outcome

Issues in the judgment

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minor

The application date is given inconsistently as 30th June 2017 in the ruling and 30th August 2017 in relation to the affidavit; the Motion is described as dated 30th June 2017 while paragraph 5 refers to a Notice of Motion filed after the award of February 2017 without a date

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ananias N. Kiragu v Eric Mugambi & 2 others [2017] KECA 128 (KLR)", Case Analysis (2017). Civil Appeal No. 59 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/128/eng@2017-12-07

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