Irungu Kihuni v Wambugu Gakunga & another [1986] KECA 12 (KLR)
The bottom line
#If you agreed to arbitration in Kenya, you cannot later raise defences like limitation that you never argued before the arbitrators.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether ground 3 of the memorandum of appeal, raising limitation of actions against the arbitral award, should be struck out on preliminary objection
- 2.Whether the appellant should be granted leave to amend ground 2 of the memorandum of appeal to add a ground of res judicata
Key legal issues
#Whether the appellant could challenge the award on limitation grounds not raised before the arbitrators
The limitation ground was abandoned by the consent reference; raising it on appeal would nullify the consent order and is barred by estoppel
The six issues were framed by consent and none mentioned limitation; no evidence was taken on it. Permitting the appellant to argue limitation would destroy the basis of the consent order. Parties who agree to a reference are estopped from attacking it, and estoppel can arise from silence or inaction where a party is under a duty to speak or act.
Whether leave to amend the memorandum of appeal to plead res judicata should be granted
Refused: res judicata was not pleaded at trial, the prior RM case involved different parties and subject-matter, and further evidence would be needed
The appellant never pleaded res judicata in his defence. The record of Civil Appeal No 27 of 1967 (RM's Court, Nyeri) showed different parties and a partnership-accounts subject-matter. While leave to amend exists, it is rarely given and only for inadvertent omission where all material is before the court without further evidence.
Legal principles established
#- Once parties by consent apply for a reference of their disputes to arbitration under order XLV rules 1 and 3, the court has no discretion and the parties are estopped from attacking the order of reference
- A party who framed issues for arbitration by signed consent and did not base his case on a defence of limitation is deemed to have abandoned that defence for the arbitration and cannot raise it on appeal against the award
- Res judicata must be pleaded and can only properly be raised at the trial, not by amendment of a memorandum of appeal
Court orders
#- 1.Ground 3 of the memorandum of appeal is struck out
- 2.Leave to amend ground 2 of the memorandum of appeal to plead res judicata is refused
- 3.The remainder of the appeal is to be set down for the next Court of Appeal sessions at Nyeri
- 4.Costs of the preliminary objection awarded 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
- Civil Case No 110 of 1983
- Jurisdiction invoked
- Appeal from the High Court under the Appellate Jurisdiction Act and Civil Procedure Rules (order XLV)
Relief refused
#Leave to amend the memorandum of appeal to include a ground of res judicata
Res judicata is a matter of pleading, was never pleaded at trial, and amendment at that stage would require further evidence and unsettle foundations
Costs
Costs of the preliminary objection given 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.
The court therefore has no discretion in the matter once the parties apply to the court for an order of reference and the parties are estopped from attacking the order of reference which was made on their application.
Res judicata is a matter of pleading and can be only properly raised at the trial
As Gachuhi Ag JA also agrees it is ordered that ground 3 of the memorandum of appeal is dismissed. Leave to amend ground 2 of the memorandum of appeal is refused.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Irungu Kihuni v Wambugu Gakunga & another [1986] KECA 12 (KLR)", Case Analysis (1986). Civil Appeal No 61 of 1985. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1986/12/eng@1986-10-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.