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Court of AppealDismissedCivil Appeal No. 159 of 2000

DANIEL MACHARIA KARAGACHA vs MONICAH WATITHI MWANGI [2001] KECA 199 (KLR)

Court of Appeal
18 May 2001
RKR.O. KwachROR.S.C. OmoloSBS.E.O. Bosire
823 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that once a court enters judgment on an arbitration award, you cannot use a late review application to reopen old arguments.

What this practically means

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Executive summary

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This Court of Appeal judgment (Kwach, Omolo and Bosire, JJ.A) dismisses an appeal against a ruling of Osiemo, J of the High Court at Nyeri dated 13 November 1996, dismissing the appellant's notice of motion with costs. The underlying dispute concerned land known as Location 2/Gacharage/330, which the respondent claimed had belonged to her late husband, Mwangi Kieru, but had been registered in the appellant's name as trustee. By a consent recorded before Tunoi, J on 9 February 1993, all matters in dispute were referred to arbitration before the D.C. Murang'a or his nominee, assisted by four elders. Angawa, J rejected the appellant's application to set the award aside on 9 November 1993, and on 27 October 1994 she entered judgment in terms of the award, upon which a decree issued. Although entitled to appeal as of right, the appellant did not do so; under Order 45 rule 17(2) of the Civil Procedure Rules his right of appeal was thereafter confined to the ground that the decree was in excess of, or not in accordance with, the award - a ground never pursued. Nearly two years later he sought review, declarations that the claim was statute-barred and defective for want of letters of administration, and striking out of the suit. The Court of Appeal held there was no basis for review: no error of law appeared on the face of the record, and the limitation and probate points were not new matter, due diligence having enabled the appellant to raise them before Angawa, J. By consenting to arbitration the parties had made the arbitrators judges of law and fact. The suit having been finally determined and a decree in existence, there was nothing to strike out; the motion was an abuse of process. The appeal was dismissed 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 appellant was entitled to any of the prayers in his notice of motion of 3rd July 1996 - review of the judgment, declarations that the respondent's claim was statute-barred and defective for want of letters of administration, striking out of the suit, and costs.
  2. 2.Whether there was any basis for review of the judgment entered in terms of the arbitral award, in particular whether there was an error of law apparent on the face of the record or discovery of new and important matter of evidence.
  3. 3.Whether the grounds in prayers (2) and (3) of the motion could be treated as amounting to the discovery of new and important matter of evidence.
  4. 4.Whether there remained any suit capable of being struck out after judgment had been entered in terms of the award and a decree issued.
  5. 5.Whether the motion was an abuse of the process of the court.
  6. 6.Whether the Court of Appeal should interfere with Osiemo, J's dismissal of the motion with costs.

Key legal issues

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01

Whether the judgment entered in terms of the arbitral award could be reviewed on the grounds of limitation and want of letters of administration

Holding

There was no basis for review. There was no error of law apparent on the face of the record, and the grounds in prayers (2) and (3) could not be treated as discovery of new and important matter of evidence.

Reasoning

Review requires either an error of law apparent on the face of the record or the discovery of new and important matter of evidence which, despite due diligence, could not have been placed before the court earlier. The appellant knew of the limitation point and the absence of a grant when he filed his defence and when he applied to set aside the award before Angawa, J. The matters were therefore neither new nor undiscoverable by due diligence, and the motion could not reopen the judgment.

p. 2
02

The effect of a consent reference of all matters in dispute to arbitration

Holding

By consenting to refer all matters in dispute to arbitration, the parties constituted the arbitrators judges of both law and facts, and a court would have been very reluctant to interfere with the award on that basis.

Reasoning

The consent recorded before Tunoi, J referred all matters in dispute to the D.C. Murang'a or his nominee assisted by four elders. Once parties clothe an arbitrator with authority to decide both law and fact, the scope for judicial interference with the award narrows considerably. The court indicated it would have been very reluctant to disturb the award on the grounds the appellant later sought to raise, reinforcing the finality of the award and of the judgment entered in its terms.

p. 3
03

Loss of the right of appeal after judgment entered in terms of an arbitral award

Holding

After Angawa, J entered judgment in terms of the award and a decree issued, the appellant lost any right of appeal save on the ground that the decree was in excess of, or not in accordance with, the award; no such appeal was filed.

Reasoning

Order 45 rule 17(2) of the Civil Procedure Rules confines any appeal after judgment in terms of an award to the narrow ground that the decree exceeds or departs from the award. The appellant, although entitled to appeal as of right against Angawa, J's ruling refusing to set aside the award, did not do so, nor did he appeal on the narrow ground available after judgment. His later motion could not reopen matters foreclosed by that statutory scheme.

p. 2
04

Whether a concluded suit with an existing decree can be struck out

Holding

No. The suit had finally been determined and a decree of the court was in existence, so there was no suit which could have been struck out with costs to the appellant.

Reasoning

Prayer (4) of the motion sought striking out of the respondent's suit, but the suit had already been concluded by judgment entered in terms of the arbitral award, upon which a decree issued. Striking out is a remedy directed at pending actions; a suit that no longer exists as a pending action cannot be struck out. The prayer was therefore misconceived, and Osiemo, J was clearly justified in dismissing the motion with costs.

p. 3
05

Whether the motion was an abuse of the process of the court

Holding

The motion before Osiemo, J was in fact an abuse of the process of the court.

Reasoning

The motion, filed nearly two years after judgment in terms of the award, sought to relitigate matters the appellant could have raised earlier and to strike out a suit already concluded by a decree. The court found no plausible excuse for interfering with the dismissal below and characterised the motion as an abuse of process, underscoring that procedural devices cannot be used to circumvent the finality of a decree and rights of appeal that have been lost.

p. 3

Legal principles established

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  • Where parties by consent refer all matters in dispute to arbitration, they constitute the arbitrators judges of both law and fact, and a court will be very reluctant to interfere with the resulting award on that basis.
  • Once judgment has been entered in terms of an arbitral award and a decree issued, the losing party's right of appeal is confined to the ground that the decree is in excess of, or not in accordance with, the award.
  • Review of a judgment lies only on the established grounds: there must be an error of law apparent on the face of the record, or discovery of new and important matter of evidence which the applicant could not by exercise of due diligence have placed before the court at the earlier hearing; matters known and available then do not qualify.
  • Where a suit has been finally determined and a decree is in existence, there is no suit remaining that can be struck out.
  • A motion filed long after judgment, seeking to relitigate matters that could and should have been raised before the decree, is an abuse of the process of the court.

Court orders

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  1. 1.This appeal be and is hereby dismissed with costs to the respondent.

The bench

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

RK
majority
RO
majority
SB
majority
On appeal from
High Court of Kenya at Nyeri
H.C.C.C No. 94 of 1992
Jurisdiction invoked
Not expressly stated in the judgment; the appeal was brought to the Court of Appeal against the Ruling and Order of the High Court at Nyeri (Osiemo, J) dated 13th November 1996 in H.C.C.C No. 94 of 1992.

Relief refused

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Review of the judgment entered in terms of the arbitral award (prayer 1 of the motion)

There was no basis for review; no error of law was apparent on the face of the record.

p. 2

Declaration that the respondent's claim was statute-barred (prayer 2 of the motion)

The ground could not be treated as discovery of new and important matter of evidence which the appellant could not by exercise of due diligence have placed before the court or before Angawa, J.

p. 2

Declaration that the respondent's claim was defective in law for lack of grant of letters of administration (prayer 3 of the motion)

For the same reason as prayer 2 - the point was available to the appellant by due diligence when he pleaded and when he applied to set aside the award, so it was not new and important matter.

Striking out the respondent's suit (prayer 4 of the motion)

The suit had been finally determined and a decree of the court was in existence; there was no pending suit capable of being struck out.

p. 3

Costs of the application and of the main suit (prayer 5 of the motion)

Osiemo, J was justified in dismissing the motion with costs and the Court of Appeal found no plausible excuse for interfering with him.

p. 3

Costs

We order that this appeal be and is hereby 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.

We order that this appeal be and is hereby dismissed with costs to the respondent.
p. 3Final orders - dismissal of the appeal with costs to the respondent
Osiemo, J. was clearly justified in dismissing the motion with costs and we can find no plausible excuse for interfering with him.
p. 3Affirmance of the High Court ruling
In any case the parties had, by consent, referred all the matters in dispute to arbitration and they had thus constituted the arbitrators the judges of law and facts.
p. 3Consent reference to arbitration - arbitrators as judges of law and fact
By Order 45 rule 17(2) of the Civil Procedure Rules, the appellant thereupon lost any right of appeal save on the ground that the decree is in excess of, or not in accordance with, the award.
p. 2Loss of right of appeal after judgment entered in terms of an award
There was no error of law apparent on the face of the record and none of the grounds set out in prayers (2) and (3) were available to the appellant because they could not be treated as amounting to the discovery of new and important matter of evidence which the appellant could not by exercise of due diligence have placed in his pleadings, or before Angawa, J. when she heard the application to set aside the award.
p. 2Grounds for review - error apparent on the face of the record and new matter
There was accordingly no suit which could have been struck out with costs to the appellant.
p. 3No suit to strike out after final determination and decree
We think the motion before the learned Judge was in fact an abuse of the process of the court.
p. 3Abuse of the process of the court

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (10)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "DANIEL MACHARIA KARAGACHA vs MONICAH WATITHI MWANGI [2001] KECA 199 (KLR)", Case Analysis (2001). Civil Appeal No. 159 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/199/eng@2001-05-18

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