Nyangau v Nyakwara [1985] KECA 110 (KLR)
The bottom line
#Kenya's Court of Appeal threw out an arbitration award because the arbitrator refused to hear a key witness and let the deadline lapse.
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 arbitrator misconducted himself by refusing the defendant/appellant the opportunity to call Onyando Bonuke as a material witness
- 2.Whether the arbitrator's hearing and award, made long after the 90-day period fixed in the reference without any written extension or court order under order XLV rule 8, went to the root of his authority and jurisdiction
- 3.Whether a point going to jurisdiction not raised in the courts below could nevertheless be taken on appeal
Key legal issues
#Refusal to hear a material witness as arbitral misconduct
The arbitrator denied the appellant the chance to call Onyando Bonuke, a material witness, thereby misconducting himself and giving grounds to set aside the award under order XLV rule 15(1)(a).
The appellant indicated he had five witnesses but only four gave evidence; the record showed 'Close of defence case' in the third person rather than the defendant closing his own case, unlike the plaintiff's record. The arbitrator's affidavit gave a general denial but failed to answer the specific allegation, which was within his own knowledge and which he alone could answer. Onyando's affidavit showed he was waiting outside to be called. The witness was material to the issue of joint ownership and the authority to sell, so the refusal was misconduct.
Award made outside the time fixed in the reference without extension
The reference required the award to be filed within 90 days; the arbitration commenced over nine months later with no written agreement or court application to extend time under order XLV rule 8, so the award was a nullity.
Under order XLV rule 8(1) an extension must be in writing and rule 8(2) permits application to the court; conduct of the parties cannot enlarge time under the Kenyan rules, which differ from the English position where lapse can be cured. The arbitrator, as an advocate, had an added responsibility to satisfy himself he could act under the reference. Because the objection goes to jurisdiction, the court must take the point even though not raised below, declare the award a nullity, set it aside, and let the suit proceed to hearing.
New points on appeal where they go to jurisdiction
While a litigant generally cannot take a completely new point of law for the first time on appeal, the exceptions include cases where the court below did something illegal or outside its jurisdiction.
Relying on Kenya Commercial Bank v James Osebe and Balchin v Buckle, Hancox JA noted the general bar on new points on statutory appeals, with two exceptions including jurisdictional error. He was nevertheless not persuaded that the delay in hearing the arbitration, in which both parties fully participated, went to the root of the arbitrator's authority. Gachuhi Ag JA and Platt Ag JA took the contrary view that the expiry of time was a jurisdictional nullity which the court must itself declare.
Legal principles established
#- An arbitrator who refuses to permit a party to call evidence material to an issue which the party wishes to call is guilty of misconduct and the award may be set aside on that ground.
- Under Kenyan order XLV rule 8, an extension of the time for making an award must be by written agreement or by court order; it cannot be effected merely by the parties' conduct, and an award made outside the time fixed in the reference without extension is a nullity.
- A point going to the jurisdiction of an arbitrator must be taken and declared by the court even if raised for the first time on appeal.
Court orders
#- 1.Appeal allowed on the second ground (and, per Platt Ag JA and Gachuhi Ag JA, also on the first ground)
- 2.Order of the learned judge dismissing the first appeal set aside
- 3.Order of the resident magistrate dismissing the application to set aside the award set aside
- 4.Award dated June 5, 1982 set aside
- 5.Case remitted to a magistrate's court of competent jurisdiction for hearing and determination according to law; trial court to supersede the arbitration and proceed with the trial of the suit
- 6.Costs of the appeal, of the first appeal and of the application to set aside the award awarded to the appellant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Held that an arbitrator who refuses a party the opportunity to call a material witness is guilty of misconduct entitling the award to be set aside; the arbitrator's failure to answer the allegation that Onyando Bonuke was not called meant the probability was that he was not permitted to testify. On the first ground, Hancox held that the hearing outside the agreed time did not go to jurisdiction, applying the rule against new points on appeal, but agreed the appeal should be allowed on the second ground, the award set aside and the case remitted, with costs to the appellant.
It is well settled that if an arbitrator does not permit a party to call evidence which is material to the issue and which he wants to call it amounts to misconduct on his part.p. 1
Wrote the judgment
Recounted the procedural history and found the arbitrator misconducted himself by closing the defence case and refusing the defendant the chance to call Onyando Bonuke, a material witness, without answering that allegation in his affidavit. Gachuhi further held that the arbitration started well outside the 90-day reference period, that no written extension was made under order XLV rule 8, and that this went to the root of the jurisdiction, making the award a nullity. He would allow the appeal, set aside the award, direct the trial court to supersede the arbitration and proceed with the trial, with costs to the appellant.
If the arbitrator was pressed by the time during that day, he could have adjourned the hearing to another day for taking the evidence of this vital witness. He had already allocated two and half days to the plaintiff why only half a day for the defendant. By his refusal he misconducted himself.p. 5
Wrote the judgment
Agreed with Hancox JA and Gachuhi Ag JA on the second ground. Separately expressed the opinion that ground one also succeeded because the award was filed long after the time fixed in the reference; under Kenyan order XLV rule 8 an extension of time must be by written agreement or court application, not by conduct, and none existed, so the award was a nullity. Because the objection went to jurisdiction, the court was bound to take the point and set aside the award, with the suit proceeding to hearing under order XLV rule 15.
It is incontrovertible, that whether or not this matter was raised only on this appeal, as it goes to the jurisdiction of the arbitrator, this court must take the point and declare that the award was a nullity and should have been set aside.p. 8
- On appeal from
- High Court at Kisii
- null
- Jurisdiction invoked
- Second appeal to the Court of Appeal under the Civil Procedure Act/Rules (Order XLV arbitration procedure); the appeal was against the High Court's dismissal of a first appeal from the resident magistrate's dismissal of an application to set aside an arbitral award
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.
It is well settled that if an arbitrator does not permit a party to call evidence which is material to the issue and which he wants to call it amounts to misconduct on his part.
Rule 8(1) clearly avoids conduct.
Therefore the objection goes to the jurisdiction of the arbitrator to enter upon the arbitration. It is incontrovertible, that whether or not this matter was raised only on this appeal, as it goes to the jurisdiction of the arbitrator, this court must take the point and declare that the award was a nullity and should have been set aside.
I would set aside the order of the learned judge dismissing the first appeal and that of the resident magistrate dismissing the application to set the award aside. I would remit the case to a magistrate's court of competent jurisdiction for hearing and determination according to law.
I would allow this appeal and set aside the dismissal by the learned judge and the learned resident magistrate and substitute an order for setting aside the award. I would further direct that the trial court shall supersede the arbitration and shall proceed with the trial of the suit.
Issues in the judgment
#The reference period is recorded inconsistently within the judgment: the consent order reproduced in Gachuhi Ag JA's judgment states 90 days, while Platt Ag JA reproduces it as 60 days.
The respondent authority Oscroft v Benabo is spelled differently in the two judgments ('Benabo' in Hancox JA's judgment, 'Benado' in Gachuhi Ag JA's judgment).
The coram lists Hancox, Nyarangi JJA and Platt Ag JA, but Gachuhi Ag JA also delivered a separate judgment though not named in the bench listing.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyangau v Nyakwara [1985] KECA 110 (KLR)", Case Analysis (1985). Civil Appeal No 33 of 1984. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1985/110/eng@1985-06-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.