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Court of AppealDismissedCivil Appeal (Kakamega High Court arbitration referral, Order 45 appeal)

Mark Mutsembi & Others v Isaiah Andati Titiya [1987] KECA 25 (KLR)

Court of Appeal of Kenya
20 February 1987
1,420 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that challenges to an elders' arbitration award must strictly follow Order 45 rules 15 and 16, or the award stands.

What this practically means

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Executive summary

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The plaintiffs sued in the High Court at Kakamega alleging that the defendant fraudulently induced their blind and illiterate father, Mutsembi Nduku, to thumbprint a transfer of 38 acres at an inadequate price of Kshs 7,400, and sought eviction, perpetual injunction, damages for trespass, sub-division, transfer and refund of the purchase price. By consent the dispute was referred to arbitration by four elders chaired by the District Officer. The award was filed in court; the appellants' application to set it aside was dismissed for non-compliance with order 45 rule 15 of the Civil Procedure Rules, and they appealed. The Court of Appeal (Gachuhi and Nyarangi JJA, Apaloo JA concurring) dismissed the appeal. It held that the District Officer was not entitled to announce the elders' decision, the award being filed in court for pronouncement with a 30-day window for application under order 45 rules 15 and 16; that the appellants, having a common claim, were properly heard through a spokesman; that the blindness/non-disclosure averment was not pursued before the elders; that the chairman did not misconduct himself, having adjourned and obtained the relevant court files; and that the appellants could not, after their father's death, challenge a sale into possession in 1970 during his lifetime. The judge's dismissal of the setting-aside application was affirmed with costs to the respondent.

Questions the Court framed

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

  1. 1.Whether the District Officer as chairman of the panel of elders was obliged to inform the appellants of the decision of the elders
  2. 2.Whether the appellants were denied a chance to state their case before the panel of elders
  3. 3.Whether the alleged blindness and illiteracy of Mutsembi Nduku and the defendant's alleged non-disclosure were pursued before the arbitrators
  4. 4.Whether the District Officer as chairman misconducted himself in handling the request for court proceedings relating to the land
  5. 5.Whether the learned judge was right in dismissing the application to set aside the arbitration award

Key legal issues

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01

Whether non-communication of the elders' decision by the District Officer vitiates the award

Holding

The District Officer is not entitled to announce the elders' decision; the award is filed in court and pronounced there, so the ground fails.

Reasoning

Under the consent referral and order 45, the panel's decision is filed in court for the court to pronounce; the aggrieved party then has 30 days to apply under rules 15 and 16. Since the appellants did apply and the application was dismissed, no prejudice arises from the District Officer not announcing the decision.

p. 2
02

Whether the appellants were denied a fair hearing by the panel

Holding

No; the appellants had a common claim and agreed on a spokesman, and they were present and heard.

Reasoning

The heading of the arbitration proceedings referred to four others; since the plaintiffs had a common claim it was unobjectionable for one to speak for them, as indeed happened before the Court of Appeal where only the first appellant spoke and the rest adopted his submissions. The claim of non-disclosure by the defendant was also not pursued before the elders.

p. 2
03

Whether children could challenge a sale by their father after his death on the ground of disinheritance under custom

Holding

The claim was unsound; possession passed in 1970 during the father's lifetime, and the appellants could not, after his death, claim what he had sold.

Reasoning

The respondent went into possession in 1970 during the father's lifetime. The customary claim that a father could not disinherit his children was undermined by evidence that the husband had more wives who were given land, and the court accepted the defence that the appellants were given their portions and sold them.

p. 2

Legal principles established

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  • The decision of arbitrating elders is not communicated to the parties by the panel; the award is filed in court for the court to pronounce, and the aggrieved party then has 30 days to apply under order 45 rules 15 and 16.
  • A party aggrieved by an arbitration award must bring his complaints within order 45 rule 15 of the Civil Procedure Rules.

Court orders

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  1. 1.Appeal dismissed with costs
  2. 2.Dismissal of the application to set aside the arbitration award affirmed

The bench

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

majority

Wrote the judgment

Narrates the facts and dismisses the appeal: the District Officer was not obliged to announce the elders' decision, the appellants had a spokesman and were heard, the claim of inadequate price was unsound, and the application to set aside the award was properly dismissed for non-compliance with order 45 rule 15.

I am inclined to accept the defence that the appellants were given their portion of lands and sold them and, now, after their father' death, they want to claim what was sold by him, during his lifetime.p. 2
majority

Wrote the judgment

Takes Gachuhi JA's factual narration and addresses the two questions: the plaintiffs did not pursue before the elders the averment that the deceased was blind, and the chairman did not misconduct himself since he adjourned and obtained the court files. Appeal dismissed with costs.

I have no hesitation in holding that the appeal ought be dismissed and as Apaloo J A concurs, the appeals is dismissed with costs.p. 3
AP
majority
On appeal from
High Court of Kenya, Kakamega
Jurisdiction invoked
First appeal under the Civil Procedure Act and Order 45 of the Civil Procedure Rules (arbitration by consent)

Relief refused

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Setting aside of the arbitration award

The complaints did not comply with order 45 rule 15 of the Civil Procedure Rules and the elders' decision was correct

p. 2

Costs

Appeal dismissed with costs to the respondent

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 decision of the elders is not to be communicated to the parties by the panel but the award is filed in court for the court to pronounce.
p. 2Communication of arbitration award under order 45
I have no hesitation in holding that the appeal ought be dismissed and as Apaloo J A concurs, the appeals is dismissed with costs.
p. 3Final orders - dismissal with costs
This appeal has no merit, I would dismiss it with costs.
p. 2Disposition
The learned judge was right in dismissing their application to set aside the arbitration award, because the reason given were outside the arbitration award, because the reason given were outside order 45 rule 15 of the Civil Procedure Rules.
p. 2Affirmation of High Court dismissal of setting-aside application

Issues in the judgment

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minor

The judgment contains a garbled sentence where the answer to the first question appears to be omitted

minor

Repetition of an incomplete phrase in the same passage

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, "Mark Mutsembi & Others v Isaiah Andati Titiya [1987] KECA 25 (KLR)", Case Analysis (1987). Civil Appeal (Kakamega High Court arbitration referral, Order 45 appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1987/25/eng@1987-02-20

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