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Court of AppealStruck OutCivil Appeal 35 of 1986

Jotham Gichuki Ruhara v Wangui Kabuga & another [1986] KECA 74 (KLR)

Court of Appeal
9 October 1986
1,666 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that once a court enters judgment on an arbitration award, you can only appeal if the decree exceeds or contradicts the award.

What this practically means

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Executive summary

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This appeal arose from the refusal of the High Court at Nyeri (Patel J) on January 16, 1986 to set aside an arbitration award made under a consent order of June 14, 1983 referring a land dispute to four elders chaired by the District Officer, Karatina. The underlying dispute concerned land KONYU/BARICHO/97 belonging to Gichuki Ruhara, who died in 1956 survived by three married daughters. The appellant, the deceased's grandson, occupied the portion of his mother and claimed the land as his alone, while the respondents, the other two daughters, sued in 1980 for adverse possession under section 38 of the Limitation of Actions Act. By consent the dispute went to arbitration; the award was unfavourable to the appellant, was filed in court, and judgment was entered in terms of the award after his application to set it aside was dismissed. Gachuhi Ag JA, delivering the leading judgment, held, following Samuel Mwai Rimbi v Josphat Mugo Rimbi, that proceedings based on arbitration under Order XLV are terminated on judgment being entered under rule 17, to which no appeal lies. Kneller JA, in a concurring opinion, resolved the apparent conflict between Order XLV rule 17(2), Order XLII rule 1(1)(bb) and section 75(1)(h) of the Civil Procedure Act by holding that the right of appeal exists only on the ground that the decree is in excess of, or not in accordance with, the award - a ground not relied on here - and that leave, never sought or obtained, would otherwise be required. Nyarangi JA agreed, finding no prejudice in the exclusion of Mathenge Kanuru from the arbitration panel. The appeal was struck out with costs to the respondents.

Questions the Court framed

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

  1. 1.Whether an appeal lies against a judgment entered in terms of an arbitration award under Order XLV rule 17 after an application to set aside the award under rule 15 has been dismissed
  2. 2.Whether the appeal, not being based on the ground that the decree was in excess of, or not in accordance with, the award, was competent
  3. 3.Whether leave to appeal was required and obtained

Key legal issues

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01

Competence of an appeal from a judgment entered in terms of an arbitration award under Order XLV rule 17

Holding

The appeal was incompetent. Proceedings based on arbitration under Order XLV are terminated on judgment being entered under rule 17, to which no appeal lies, unless other proceedings are commenced under a different provision of law.

Reasoning

The court, following its earlier decision in Samuel Mwai Rimbi v Josphat Mugo Rimbi, held that once judgment is entered in terms of an arbitration award under Order XLV rule 17, the arbitration proceedings are terminated and no competent appeal can be filed against that judgment. The only appealable complaint is that the decree is in excess of, or not in accordance with, the award, and this appeal was not so based.

p. 2
02

Reconciliation of Order XLV rule 17(2), Order XLII rule 1(1)(bb) and section 75(1)(h) of the Civil Procedure Act

Holding

The apparent conflict is resolved by reading Order XLV rule 15(1) as cutting down Order XLII rule 1(1)(bb): an appeal as of right lies only on the ground that the decree is in excess of, or not in accordance with, the award; on any other ground leave is required.

Reasoning

Kneller JA reasoned that although Order XLII rule 1(1)(bb) allows an appeal as of right from orders under Order XLV rules 13 and 15, rule 15(1) comes after and cuts it down. A decree in excess of, or not in accordance with, an award must be subject to a right of appeal, but once an award survives an application to set it aside there is no compelling need to allow an appeal on any other grounds. The draftsman's scheme must be made to work.

p. 3
03

Merit of the appellant's objections to the arbitration award

Holding

The objections were unfounded: Mathenge Kanuru's exclusion from the panel caused no prejudice as he gave evidence for the appellant, and the elders properly found the three daughters to be the lawful heirs.

Reasoning

The court noted that the deceased had shared his other pieces of land to his daughters without dispute, and that the award by the elders was one of the best the court could think of. The appellant's fear that his brothers would claim shares was unfounded and could not be the basis of the appeal. The award was just and should not be altered.

p. 2

Legal principles established

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  • Proceedings based on arbitration under Order XLV of the Civil Procedure Rules are terminated by judgment entered under rule 17, and no appeal lies from that judgment except in so far as the decree is in excess of, or not in accordance with, the award.
  • The right of appeal from an order refusing to set aside an arbitration award under Order XLV rule 15(1) exists only on the ground that the resulting decree is in excess of, or not in accordance with, the award; otherwise leave of the High Court or the Court of Appeal is required.

Court orders

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  1. 1.The appeal is struck out
  2. 2.The appellant will pay costs of the appeal to the respondents

The bench

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

majority

Wrote the judgment

Gachuhi Ag JA wrote the leading judgment. He traced the history: the appellant, grandson of the deceased, contested the daughters' inheritance; the respondents sued for adverse possession; the dispute was referred by consent to arbitration of four elders chaired by the District Officer, Karatina; the award was filed in court and the appellant's application to set it aside was dismissed by Patel J on January 16, 1986, with judgment entered in terms of the award. Relying on Samuel Mwai Rimbi v Josphat Mugo Rimbi, he held that proceedings under Order XLV are terminated on judgment being entered under rule 17, to which no appeal lies, so the appeal was incompetent and was struck out with costs to the respondents.

The proceedings based on arbitration under Order XLV are terminated on judgment being entered under rule 17 of the order to which there is no appeal.p. 2
concurring

Wrote the judgment

Kneller JA agreed. He analysed the tension between Order XLV rule 17(2) (no appeal except where the decree is in excess of, or not in accordance with, the award), Order XLII rule 1(1)(bb) (appeal as of right from orders under Order XLV rules 13 and 15) and section 75(1)(h) of the Civil Procedure Act. He resolved it by holding that the right of appeal exists only on the ground that the decree is in excess of, or not in accordance with, the award - which this appeal was not - and that leave to appeal had neither been sought nor obtained. The appeal was incompetent and was struck out with costs; the award was a just one and should not be altered.

this appeal is not based on the grounds that the decree is in excess of, and not in accordance with, the award. ... The appeal is incompetent and must be struck out with costs.
concurring

Wrote the judgment

Nyarangi JA agreed with both colleagues that the appeal was incompetent and the award fair. He addressed the appellant's complaints that the respondents had land elsewhere and that Mathenge Kanuru had not been allowed to sit as an arbitrator, holding that no prejudice was caused because Mathenge Kanuru gave evidence for the appellant and the elders found the three daughters to be the lawful heirs. He agreed with the costs order proposed by Gachuhi Ag JA.

I am entirely of the same opinion as Kneller JA and Gachuhi Ag JA that the appeal is incompetent and that the award was a fair one.p. 3
On appeal from
High Court of Kenya at Nyeri
Civil Case 70 of 1980
Jurisdiction invoked
Order XLV rule 17(2) of the Civil Procedure Rules; section 75(1)(h) of the Civil Procedure Act; Order XLII rule 1(1)(bb) of the Civil Procedure Rules

Relief refused

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Leave to appeal against the judgment entered in terms of the arbitration award

Leave was neither sought nor obtained from the High Court or this Court

p. 3

Costs

The appellant will pay costs of the appeal to the respondents; the appeal was struck out with costs.

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.

The proceedings based on arbitration under Order XLV are terminated on judgment being entered under rule 17 of the order to which there is no appeal.
p. 2Finality of judgment entered in terms of an arbitration award under Order XLV rule 17
Note that Order XLV rule 15(1) comes after Order XLII rule 1(1)(bb) and so cuts it down.
p. 3Construction of the appeal provisions governing arbitration awards
Here, the appeal is not based on the grounds that the decree (that followed the judgment entered upon the dismissal of the application to set aside the award ) is in excess of or not in accordance with the terms of the award.
p. 3Scope of the right of appeal under Order XLV rule 17(2)
Nyarangi JA agrees, so the order of the court is that the appeal is struck out with costs. Orders accordingly.
p. 3Final orders of the court

Issues in the judgment

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minor

The coram describes Gachuhi as an Acting Judge of Appeal ('Ag J A') but the signature block styles him 'JUDGE OF APPEAL'; the judgment heading also reads 'JUDGMENT OF GACHUHI JA' while the coram shows acting rank.

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, "Jotham Gichuki Ruhara v Wangui Kabuga & another [1986] KECA 74 (KLR)", Case Analysis (1986). Civil Appeal 35 of 1986. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1986/74/eng@1986-10-09

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