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Court of AppealAllowedNot stated in the judgment

Wairimu Gathute v Theuri Wambugu & another [1994] KECA 81 (KLR)

Court of Appeal of Kenya
12 May 1994
JGJ. E. GicheruRKR. O. KwachMMM. G. Muli
919 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that a clan elders' award on inheritance was void because no formal arbitration order existed and courts cannot delegate succession decisions.

What this practically means

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Executive summary

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The appellant, a daughter-in-law of the deceased Kago Kimere, obtained a temporary grant of letters of administration intestate in 1986 and applied for its confirmation, proposing distributions of two parcels of land to herself and the two respondents. The respondents resisted the application. Before the Deputy Registrar the matter was stood over for the parties to attempt an out-of-court settlement with the help of clan elders. An award by a panel in which an Assistant Chief acted as umpire was filed and read in court. The appellant applied to set it aside, alleging bias and that she, an illiterate, did not understand the language used. The Deputy Registrar dismissed that application, and the High Court (Tunoi, J) dismissed her appeal, holding the parties had consented to arbitration and no injustice had occurred. Allowing the second appeal, the Court of Appeal held that the record disclosed no formal order referring the dispute to arbitration and no application under order 45 rule 1 of the Civil Procedure Rules; the purported award was therefore a nullity which the Deputy Registrar ought to have set aside. Further, section 71(2) of the Law of Succession Act imposes on the court a non-delegable duty to satisfy itself as to the identities and shares of all persons beneficially entitled before confirming an intestate grant, and by delegating that duty the Deputy Registrar abdicated his statutory responsibility. The Court set aside the High Court judgment, quashed the award, and remitted the confirmation application to the High Court, with costs to the appellant.

Questions the Court framed

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

  1. 1.Whether there was a formal order in the subordinate court referring the dispute to arbitration
  2. 2.Whether the purported award of the clan elders was a valid award in law
  3. 3.Whether the Deputy Registrar could delegate his statutory duty under section 71 of the Law of Succession Act to arbitrators

Key legal issues

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01

Whether a valid order of reference to arbitration existed

Holding

No such order existed; the matter was merely stood over for attempted settlement with the help of clan elders, so the purported award was a nullity.

Reasoning

The Court examined the record of proceedings before the Deputy Registrar on both dates when an order of reference was alleged to have been made. It found no such order and no application under order 45 rule 1 of the Civil Procedure Rules. What was recorded was only a stand-over to enable the parties to try to reach an amicable settlement with the assistance of clan elders, which is not a reference to arbitration.

p. 2
02

Whether the Deputy Registrar could delegate the statutory confirmation duty to arbitrators

Holding

He could not; section 71(2) of the Law of Succession Act enjoins the court itself to satisfy itself as to the identities and shares of all persons beneficially entitled, and delegation was an abdication of that duty.

Reasoning

Section 71(2) and its proviso require the court to satisfy itself as to the respective identities and shares of all persons beneficially entitled in cases of intestacy before confirming a grant. By referring the dispute to clan elders and adopting their award, the Deputy Registrar relinquished a duty the law imposed on him personally, rendering the resulting award unsustainable.

p. 2

Legal principles established

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  • A reference to arbitration requires a formal order of reference or an application under the Civil Procedure Rules; without it, any purported award is a nullity and must be set aside.
  • The court hearing an application for confirmation of a grant cannot delegate its statutory duty to determine the identities and shares of persons beneficially entitled.

Court orders

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  1. 1.Appeal allowed
  2. 2.Judgment and decree of Tunoi, J set aside
  3. 3.Award quashed
  4. 4.Application for confirmation of the grant remitted to the High Court to be heard and determined by the judge in accordance with sections 48 and 71 of the Law of Succession Act and the Probate and Administration Rules
  5. 5.Appellant to have the costs of the appeal

The bench

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

JG
majority
RK
majority
MM
majority
On appeal from
High Court
Not stated in the judgment
Jurisdiction invoked
Second appeal to the Court of Appeal under the Law of Succession Act and the applicable appellate procedure

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.

There was clearly no order referring the dispute to arbitration and the so called award filed in Court was a nullity and the Deputy Registrar should have set it aside when the appellant asked him to do so.
p. 2Absence of order of reference to arbitration
In purporting to delegate this duty to the arbitrators, he abdicated his statutory responsibility.
p. 2Non-delegable statutory duty in confirmation of grants
we allow this appeal and set aside the judgment and decree of Tunoi, J (as he then was) and in lieu thereof make an order quashing the award and remit the application for confirmation of the grant made by the appellant to the High Court
p. 2Final orders and disposition

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, "Wairimu Gathute v Theuri Wambugu & another [1994] KECA 81 (KLR)", Case Analysis (1994). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1994/81/eng@1994-05-12

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