Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Appeal 125 of 1985· [1988] KECA 137 (KLR)

Henry Mukhwana Kwemuli v Joseph Musungu Ngachi

Court of Appeal
28 March 1988
JNJO NyarangiHPHG PlattJGJM Gachuhi
3,144 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal confirmed that a 'month' in a statute means a calendar month, validating a land sale consent filed within three months.

What this practically means

#

Executive summary

#
This second appeal concerned an oral agreement of May 1980 for the sale of four acres of land, and whether the application for Land Control Board consent was made within the statutory three months. The magistrate, with the parties' consent, referred the dispute to a panel of elders whose award the appellant sought to adopt; the SRM adopted it, and Aganyanya J dismissed the respondent's (defendant's) appeal. The appellant then appealed to the Court of Appeal, contending the Board's consent was invalid because granted outside three months and that the arbitration was improperly conducted. Nyarangi JA, with Gachuhi JA agreeing, held the only live issue was timing: a 'month' means a calendar month under Cap. 2, the day of the agreement is excluded and the day of the hearing included, so the application of 7 August 1980 was within time and the consent valid. Gachuhi JA additionally held that under Order XLV rule 17(2) no appeal lies from a judgment entered in terms of an award unless it exceeds or departs from the award. Platt JA dissented: on his computation the consent given on 7 August was one day late, the agreement had become null and void by statute, and arbitration could not validate it; he would have allowed the appeal and dismissed the plaint. The appeal was dismissed with costs, affirming the decisions below. The judgment binds subordinate courts on the calendar-month computation principle and the bar on appeals from judgments entered in terms of an award.

Key legal issues

#
01

Computation of the three-month period for applying for Land Control Board consent

Holding

The application made on 7 August 1980 was within the third calendar month from the agreement of 6 May 1980; the consent was valid.

Reasoning

A 'month' means a calendar month under Cap. 2. The period from 6 May to the end of May is not a calendar month, so the period commenced at the beginning of June. Excluding the day of the agreement and including the day of hearing, the application on 7 August fell within the third calendar month, making the consent valid.

p. 2
02

Appealability of a judgment entered in terms of an elders' award

Holding

No appeal lies from such a judgment unless it is in excess of or not in accordance with the award; the grounds raised here were outside that scope.

Reasoning

Order XLV rule 17(2) of the Civil Procedure Rules restricts appeals from judgments entered in terms of an award. The appellant's grounds did not allege the judgment was contrary to the award but raised other matters not covered by the rules, so the appeal was incompetent on those grounds.

p. 5
03

Whether consent granted outside the three-month period renders the transaction null and void (dissent)

Holding

Platt JA held that if 6 May began the period, consent on 7 August was one day late and the agreement became null and void by statute; arbitrators could not validate it.

Reasoning

Applying the Halsbury formulation, a calendar month from an arbitrary date expires the day before the corresponding date in the succeeding month. Excluding the first day, the period from 7 May ended 6 August; consent given on 7 August was out of time and deemed refused. A statute had declared the agreement null and void, which arbitration could not cure.

p. 4

Legal principles established

#
  • A reference to a 'month' in a statute means a calendar month, per the Interpretation and General Provisions Act (Cap. 2).
  • In computing a statutory period, the day on which the triggering event occurs is excluded but the day on which the act is done or heard is included.
  • No appeal lies from a judgment entered in terms of an arbitration award unless the judgment is in excess of or not in accordance with the award.
  • A calendar month running from an arbitrary date expires with the day in the succeeding month immediately preceding the corresponding day, unless the succeeding month has fewer days, in which case it expires at the end of that month.

Court orders

#
  1. 1.Appeal dismissed with costs to the respondent
On appeal from
High Court at Kakamega
Jurisdiction invoked
Second appeal from the High Court under the appellate structure of the Civil Procedure Act; appeal against adoption of an elders' award governed by Order XLV rule 17(2) of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Henry Mukhwana Kwemuli v Joseph Musungu Ngachi", Case Analysis (1988). Civil Appeal 125 of 1985. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1988/137/eng@1988-03-28

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