WAKAHIHIA & 4 OTHERS V THIONGO [1986] KECA 84 (KLR)
The bottom line
#Kenya's Court of Appeal threw out an arbitration award made without hearing all parties, confirming no one can be judged unheard.
What this practically means
#Executive summary
#Key legal issues
#Whether judgment could stand against defendants who neither appeared nor were heard at the arbitration
No. Judgment imposed on parties who were never summoned or heard is vitiated; the court on review should have declared the whole arbitration proceedings a nullity and set the judgment aside.
The land was claimed from five defendants but only two appeared before the District Officer acting as arbitrator; the rest were neither summoned nor present. Nevertheless, all defendants, including those absent, were condemned to pay costs. The court held that when this was raised on review, the judge was bound to investigate and, in the interest of justice, to hold the proceedings a nullity and set aside the judgment and the award.
Whether the absence of parties amounted to arbitrator misconduct justifying setting aside the award
Yes. Conducting arbitration without all parties present, where some had no notice, is misconduct under Order 45 rule 15, and an award affecting parties not before the tribunal to give evidence is misconduct within rule 15(1)(b).
The court treated misconduct and corruption as grounds for setting aside an award under Ord 45 r 15, and held that proceeding in the absence of parties without notice fell within that ground. It further held that allowing proceedings to commence and making an award binding parties who were not before the arbitrators was misconduct under r 15(1)(b), rendering the legality of the award questionable on its face.
Whether review could only be granted on discovery of fresh facts or evidence
No. A review may succeed where the ground is a point of law underlying the proceedings which renders them a nullity, even absent fresh evidence.
The respondent argued that review required discovery of new and important matters or evidence. The court rejected this as a complete answer, holding that the appellants' complaint was not one of fresh evidence but of a point of law going to the root of the proceedings - the failure to hear some defendants - whose effect was to render the proceedings a nullity.
Legal principles established
#- No person may be condemned to a judgment without being afforded a chance of being heard; judgment entered against parties who were never summoned or heard is a nullity.
- Conducting an arbitration without all parties present, and where some had no notice of the hearing, constitutes misconduct of the arbitrator under Order 45 rule 15.
- Where the point underlying an application for review is a point of law that renders the proceedings a nullity, it need not be founded on fresh evidence.
Court orders
#- 1.The order of the High Court dated April 19, 1985 dismissing the application for review is set aside
- 2.The application for review is granted
- 3.The judgment of the High Court dated April 17, 1984 (entered in terms of the arbitrator's award) is set aside
- 4.The proceedings before the arbitrators (the arbitration award) are set aside
- 5.The suit is remitted to the High Court at Nyeri to be proceeded with according to law
- 6.Costs of the appeal and of the proceedings on April 19, 1985 before the High Court awarded to the appellants
- On appeal from
- High Court of Kenya at Nyeri
- Jurisdiction invoked
- First appeal to the Court of Appeal against a ruling of the High Court dismissing an application for review
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "WAKAHIHIA & 4 OTHERS V THIONGO [1986] KECA 84 (KLR)", Case Analysis (1986). Civil Appeal No 58 of 1985. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1986/84/eng@1986-10-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.