Muhindi & another v Mugendo [1991] KECA 10 (KLR)
The bottom line
#Kenya's Court of Appeal voided an arbitration award because the panel was wrongly constituted, a party's elder was excluded, and the award went unsigned.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the arbitration panel was properly constituted when three elders sat instead of the four ordered and the elders nominated by the defendants were not permitted to sit or participate
- 2.Whether the failure of the elders to sign the award was a fatal defect or a mere procedural irregularity
- 3.Whether the trial judge erred in relying on a dissenting judgment and in rejecting unchallenged affidavit evidence without cross-examination
- 4.Whether strict conformity with court procedure is required in arbitrations, or only observance of the normal rules of justice and fair play
Key legal issues
#Whether failure of the elders to sign the award was fatal
The failure of all panel members to sign the award was not a mere procedural defect; signatures give the award its authenticity as a statutory delegated decision of the court, and order 45 rule 10 is mandatory.
The trial judge, following a dissenting judgment of Apaloo JA, treated non-signature as a curable procedural defect. The court held that while legislative amendment might save an award from invalidation by one member's refusal to sign, here not one or two but all members failed to sign. Signatures authenticate what is a delegated statutory decision, and without conformity with the principles of justice the award could not stand.
Whether exclusion of a party's nominated elder from the panel was misconduct
Yes. It is misconduct in the arbitration to refuse a party the right to call a material witness, and a fortiori where a member of the panel is not permitted to sit or take part.
The affidavit of Reuben Kagai, the only and unchallenged evidence on the point, established that one nominated elder was not allowed to sit and another not allowed to participate. The trial judge erred in rejecting that unchallenged evidence without cross-examination. Excluding one side's elder offends the normal rules of justice and fair play so that justice, even if done, is not seen to be done.
The standard of procedural conformity required in court-ordered arbitrations
Strict technical conformity with court rules is not essential, but the normal rules of justice and fair play must be observed; in this case there was insufficient conformity for the award to be upheld.
If strict technical conformity were required, a reference to arbitration would be superfluous. However, a court-ordered reference may demand stricter conformity with judicial principles than a consensual arbitration under the Arbitration Act. Here the panel sat three instead of four elders, an elder was excluded, and the award was unsigned - defects that went beyond mere technicality.
Legal principles established
#- The signatures of the members of the arbitration panel give the award the authenticity it should have, as a statutory delegated decision of the court.
- It is misconduct for an arbitrator to prevent a party from calling material evidence, and a fortiori to exclude a party's nominated panel member from sitting or taking part.
- Strict technical conformity with court procedure is not essential in arbitration, but there must be observance of the normal rules of justice and fair play; excluding one side's elder means justice, even if done, will not be seen to have been done.
- The constitution of an arbitration panel is not a mere procedural technicality but a fundamental matter going to the jurisdiction of the arbitrators.
- Order 45 rule 10 requiring all persons who make an award to sign it is mandatory, and failure of all members to sign renders the award invalid.
Court orders
#- 1.Appeal allowed
- 2.Judgment of Omolo J dated April 12, 1989 set aside
- 3.The objections to the award as stated in the affidavits in support of the chamber summons dated June 9 and filed on June 23, 1987 allowed
- 4.The matter remitted to the High Court for hearing and determination according to law
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the leading judgment. Reviewed the lengthy history of the suit, identified the defects in the arbitration (panel not constituted as ordered, an elder excluded from sitting and another from participating, and the award signed only by the Chairman), held that signatures give the award its authenticity as a statutory delegated decision of the court, and held there was insufficient conformity with the principles of justice for the award to be upheld. Allowed the appeal, set aside Omolo J's ruling, allowed the objections to the award and remitted the matter to the High Court.
At all events I am of the opinion in this case that there was insufficient conformity with the principles of justice for the award to be upheld.p. 4
Wrote the judgment
Delivered a separate concurring judgment. Held that the constitution of the arbitration panel goes to the jurisdiction of the arbitrators and is not a mere procedural technicality; that it is misconduct to prevent a party's nominated elder from sitting or participating; and that order 45 rule 10 is mandatory, so failure of all panel members to sign the award means no valid award was made. Would allow grounds 1, 4 and 5 and concurred in the orders proposed by the Chief Justice.
The provisions of order 45 rule 10 are mandatory and failure to sign the award by all persons who make it fatal and consequently in this case no valid award was made.p. 6
- On appeal from
- High Court
- HCCC No 87 of 1978
- Jurisdiction invoked
- Appeal from the High Court under the Court of Appeal's appellate jurisdiction (second appeal from a ruling on an application to set aside an arbitral award)
Relief refused
#Determination of grounds 2, 3 and 6 of the Memorandum of Appeal (Land Control Act issues and complaint on precedent)
Rendered unnecessary by the findings on grounds 1, 4 and 5
Costs
No costs order made by the Court of Appeal is recorded in the judgment.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
As we said in Kamau Kibuthia v Macharia Kibuthia (1984) 3 KCA 188, a strict technical conformity with the rules and procedure followed in the Court is not essential, for if that were so the reference to arbitration would be superfluous, but there must be some observance of the normal rules of justice and fair play, and if one side’s arbitrator or elder is excluded then justice even if done, will not be seen to have been done.
It is misconduct in the arbitration to refuse to permit a party to call a material witness, and how much more is this so if one member of the panel is not permitted to sit or to take part?
The provisions of order 45 rule 10 are mandatory and failure to sign the award by all persons who make it fatal and consequently in this case no valid award was made.
I would, accordingly remit the matter to the High Court for hearing and determination according to law.
For these reasons I would allow the appeal, set aside the judgment of Omolo J dated April 12, 1989
Issues in the judgment
#The headnote lists the parties' roles as 'respondent/defendant' for the first-named party, an apparent typographical error; the body shows the respondent was plaintiff and the appellants defendants.
The same Court of Appeal decision on the exclusion of an elder is cited under two different renderings (Nyangau v Nyakwara / Bawasi Nyangau v Omosa Nyangwara / Bagwasi Nyangau vs Omosa Nyakwara), suggesting duplicate references to one authority.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muhindi & another v Mugendo [1991] KECA 10 (KLR)", Case Analysis (1991). Civil Appeal No 171 of 1989. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1991/10/eng@1991-01-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.