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Court of AppealAllowedCivil Appeal 292 of 1996· [1997] KECA 53 (KLR)

FRANCIS MAINA MATHII v PETER NGURU BEDAN [1997] KECA 53 (KLR)

Court of Appeal of Kenya
16 May 1997
JGJ. E. GicheruASA. B. ShahSBS. E. O. Bosire
548 words in judgment
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The bottom line

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Kenya's Court of Appeal threw out an arbitration award because the arbitrators decided an issue nobody had raised or proved, ordering a fresh High Court hearing.

What this practically means

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Executive summary

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The Court of Appeal at Nyeri (Gicheru, Shah and Bosire, JJ.A) allowed the appellant's appeal against the High Court's refusal to review its decision not to set aside an arbitrators' award read to the parties on 18th October 1990. The award had been made in favour of the respondent on the premise that the appellant's father sold the land in question because he needed money for medical treatment. The court found that the arbitrators, without any evidence, instead found that the father sold the land to obtain school fees for his children - an issue never canvassed before the panel. The court held this amounted to misconduct by the arbitrators. It further held that the sale failed on the ground that the consent of the relevant board was obtained some five years later, and that the panel failed to answer the issues arising from the pleadings, noting that the issue of trust was before the arbitrators but not adverse possession. The court expressed concern about the manner in which some panels of arbitrators conduct proceedings, referencing a similar concern expressed in another appeal days earlier. The appeal was allowed and the suit was ordered to be heard by the High Court de novo. As the appellant acted in person, the court assessed his costs for preparing the record of appeal and out-of-pocket expenses at Shs. 5,000/=, payable by the respondent.

Key legal issues

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01

Misconduct of arbitrators by deciding an unpleaded, unevidenced issue

Holding

The arbitrators misconducted themselves by finding that the appellant's father sold the land to obtain school fees, an issue never canvassed and unsupported by evidence.

Reasoning

The award rested on the factual premise that the father sold the land for medical treatment, yet the arbitrators found, without any evidence, that the sale was to obtain school fees for his children. Since that issue was never canvassed before the panel, deciding on that basis constituted misconduct sufficient to vitiate the award and justify setting aside the refusal to annul it.

p. 2
02

Failure of arbitrators to answer the issues from the pleadings

Holding

The award was also flawed because the arbitrators failed to answer the issues arising from the pleadings; the issue of trust was before them but not adverse possession.

Reasoning

The court noted that the panel did not address the issues arising from the pleadings. The issue of trust was properly before the arbitrators, whereas adverse possession was not. This failure to confine the award to the pleaded issues reinforced the conclusion that the arbitration was conducted improperly and that the matter should be heard afresh by the High Court.

p. 2
03

Consent of the relevant board to the sale of land

Holding

The sale of land also failed on the ground that the consent of the relevant board was obtained some five years later.

Reasoning

Independently of the misconduct finding, the court observed that the consent of the relevant board to the sale of land was obtained some five years after the transaction. On this basis the issue of the sale of land failed, providing an additional ground for allowing the appeal and directing a fresh hearing.

p. 2

Legal principles established

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  • An arbitrator misconducts the proceedings by deciding an issue that was never canvassed before the panel and for which there is no evidence.
  • A panel of arbitrators must answer the issues that arise from the pleadings.

Court orders

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  1. 1.The appeal is allowed
  2. 2.The suit in the superior court is to be heard by that court de novo
  3. 3.The respondent to pay the appellant Shs. 5,000/= assessed for preparation of the record of appeal and out-of-pocket expenses
On appeal from
High Court of Kenya at Nyeri
H.C.C.C. No. 36 of 1988
Jurisdiction invoked
First appeal / appeal from the High Court under the Court's appellate jurisdiction (specific provision not stated in the judgment)

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, "FRANCIS MAINA MATHII v PETER NGURU BEDAN [1997] KECA 53 (KLR)", Case Analysis (1997). Civil Appeal 292 of 1996. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/53/eng@1997-05-16

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