Benson Kakai Namisi & another v Stufford Mukasa Namisi & another [2020] KECA 531 (KLR)
The bottom line
#The Court of Appeal confirmed that parties bound by a consent order to arbitrate cannot later challenge the arbitrator's jurisdiction, and awards must be challenged under the correct procedure.
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 learned judge erred in declining to review and set aside the arbitral award
- 2.Whether the arbitrators had jurisdiction to make the award
- 3.Whether the appellants properly moved the court to set aside the arbitral award
Key legal issues
#Effect of a consent order referring a dispute to arbitration
The consent order bound the parties and conferred jurisdiction on the arbitrator; the appellants could not thereafter challenge the arbitrator's jurisdiction.
The court applied the principle that a consent judgment or order can only be interfered with on grounds that would justify varying or rescinding a contract between parties. The appellants themselves participated in drawing the consent fixing the panel and the 60-day timeline for the award. Having failed to demonstrate fraud, collusion or any ground justifying rescission of a contract, their attack on the arbitrator's jurisdiction had no merit or basis.
Correct procedural vehicle for setting aside an arbitral award
An application for review under Order 45 was incompetent; challenges to an arbitral award must be brought under Order 46, and the limitation period for such a challenge had lapsed.
The appellants grounded their application on Order 45(1), which governs review of decrees and orders of the court on discovery of new and important matter or error apparent on the face of the record. The court held that Order 45 does not apply to arbitral awards referred under Order 46(1). Further, the High Court had correctly noted that an award under Order 46 can only be set aside under rule 16 on grounds of corruption, misconduct or fraud, none of which was substantiated.
Legal principles established
#- A consent order referring a dispute to arbitration binds the parties and cannot be set aside except on grounds that would justify setting aside a contract; parties cannot challenge the jurisdiction of an arbitrator over issues they themselves referred to arbitration.
- Order 45 of the Civil Procedure Rules does not apply to the setting aside or review of an arbitration award; the correct route is Order 46.
Court orders
#- 1.Appeal dismissed with costs
- 2.Ruling of the High Court delivered on 29th September 2016 in Bungoma HC Misc. Application No. 213 of 2004 affirmed and upheld
- 3.Judgment delivered pursuant to rule 32(3) of the Court of Appeal Rules since Odek, JA passed on before delivery
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Kiage, JA wrote a short concurring judgment wholly agreeing with the analysis and conclusions of Asike-Makhandia, JA with nothing useful to add.
I have had the benefit of reading in draft the Judgment of my learned brother Makhandia, J.A. I wholly agree with his analysis and concur in his conclusions with nothing useful to add.p. 4
- On appeal from
- High Court of Kenya at Bungoma
- Bungoma Misc. Application No. 213 of 2004
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal Rules; judgment delivered pursuant to rule 32(3) of the Court of Appeal Rules following the death of Odek, JA
Relief refused
#Review and setting aside of the arbitral award
The application was grounded on Order 45 which does not apply to setting aside an arbitral award referred under Order 46; no self-evident error was demonstrated and the limitation period had lapsed
Challenge to the jurisdiction of the arbitrator
The parties themselves conferred jurisdiction on the arbitrator through the consent order, which can only be set aside on grounds justifying rescission of a contract
Costs
Appeal dismissed with costs to the 1st respondent
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.
For the foregoing reasons, I find that this appeal has no merit. I would affirm and uphold the ruling by the learned judge delivered on 29 th September 2016 in Bungoma HC Misc. Application No. 213 of 2004. The upshot is that this appeal should be dismissed with costs.
The parties through the consent order conferred jurisdiction upon the arbitrator to determine the dispute.
Order 45 of the Civil Procedure Act does not apply to setting aside or review of an arbitration award when the dispute was referred to arbitration by the court pursuant to Order 46 (1) of the Civil Procedure Rules.
This being a first appeal, it is my duty to analyze and re-assess the evidence on record and reach my own conclusions.
Issues in the judgment
#The judgment contains a typographical error in the quoted Selle passage, garbling the text
The judgment is internally ambiguous as to whether the reference to arbitration was by consent of the parties or by the court, in the passage on Order 46
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benson Kakai Namisi & another v Stufford Mukasa Namisi & another [2020] KECA 531 (KLR)", Case Analysis (2020). Civil Appeal No. 108 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/531/eng@2020-07-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.