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Court of AppealStruck OutCivil Appeal No 76 of 1984· [1986] KECA 14 (KLR)

NDEGWA v NDEGWA [1986] KECA 14 (KLR)

Court of Appeal
22 May 1986
KNKnellerHAHancoxGAGachuhi
1,625 words in judgment
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The bottom line

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If you miss the 30-day deadline to challenge a Kenyan arbitration award, you cannot appeal the court judgment that enforces it.

What this practically means

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Executive summary

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The respondents, step-brothers and step-sisters of the appellant, obtained an originating summons in the High Court at Nyeri seeking a declaration that they had acquired title to Kirimukuyu Mbogoini 297 by adverse possession, alleging the appellant was registered in 1959 to hold it in trust for them. By consent the dispute was referred to the district officer at Karatina arbitrating with elders, whose award of August 3, 1983 found the appellant held the parcel in trust for himself, his mother and his step-siblings. The appellant, acting in person after September 20, 1983, filed a summons to set aside the award on October 27, 1983. Mr Justice JS Patel dismissed it as out of time and entered judgment in accordance with the award. The Court of Appeal (Kneller, Hancox JJA and Gachuhi Ag JA) held that no appeal lies from a decree entered in accordance with an award except where the decree exceeds or departs from the award, under Order XLV rule 17(2). The appellant's application was filed more than thirty days after he learned of the award, and no misconduct of the arbitrators or umpire was shown, misconduct being the only ground for setting aside an award under Order XLV rule 15(1). The court declined to circumvent the statutory bar, noting the odd result of nine family members as co-owners of 1.5 acres but holding that the law did not permit interference. The appeal was struck out as incompetent against all respondents save the fourth, who was not served with the hearing notice; there was no order as to the costs of the appeal. This judgment binds lower courts on the finality of decrees entered in accordance with arbitration awards.

Key legal issues

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01

Competence of appeal from a decree on an award

Holding

The appeal was incompetent because the decree was in accordance with the award and no appeal lies from such a decree

Reasoning

Order XLV rule 17(2) confines appeals from decrees entered on awards to cases where the decree exceeds or departs from the award. The decree faithfully reflected the award, so the Court of Appeal could not entertain the appeal. The proper remedy was a timely application to set aside the award, which the appellant failed to make.

p. 2
02

Time limit for applying to set aside an award

Holding

The application filed on October 27, 1983 was out of time, being more than thirty days after the appellant received notice of the filing of the award and heard it read out

Reasoning

Order XLV rule 16 requires an application to set aside an award within thirty days. The appellant heard the award read out on September 20, 1983 with his advocate and knew the result, having even written to the Attorney-General asking the High Court to set it aside. The delay was not excusable.

p. 2
03

Grounds for setting aside an award

Holding

Misconduct of the arbitrators or umpire is the only ground for the High Court to set aside an award under Order XLV rule 15(1), and none was established

Reasoning

The appellant's complaint centred on his mother's earlier unsuccessful suit in the resident magistrate's court, but that result was not relevant to the other respondents' claims in the originating summons. He participated in the consented arbitration and was heard with his witnesses, so no misconduct vitiating the award was shown.

p. 3

Legal principles established

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  • No appeal lies from a decree entered in accordance with an arbitration award except in so far as the decree is in excess of, or not in accordance with, the award
  • An application to set aside an arbitration award must be filed within thirty days; a party who fails to do so cannot appeal from the decree that follows

Court orders

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  1. 1.The appeal was struck out so far as all the respondents are concerned save for the fourth respondent, Ndirangu Ndegwa
  2. 2.No order as to the costs of the appeal
On appeal from
High Court
null
Jurisdiction invoked
First appeal under the Civil Procedure Rules from a decree entered in accordance with an arbitration award (Order XLV rule 17(2))

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, "NDEGWA v NDEGWA [1986] KECA 14 (KLR)", Case Analysis (1986). Civil Appeal No 76 of 1984. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1986/14/eng@1986-05-22

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