James Ngunu Gikaria & another v Ephraim Maina Muriuki & another [2004] KECA 126 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that parties can extend arbitration deadlines by consent, and lawyers who delay risk losing their case and paying costs.
What this practically means
#Executive summary
#Key legal issues
#Whether an arbitral award filed after expiry of the originally limited time, but within a time extended by consent of the parties, is a nullity.
No - such an award is perfectly valid and its filing is not an error on the face of the record.
The Court rejected the argument that an award filed after the original 90-day period was a nullity. The time for filing had been extended twice by consent of the parties, and Order XLV rule 8(1) of the Civil Procedure Rules expressly allows parties to extend the time for making an award whether or not time had expired when they agreed, and whether or not an award had already been made. Because the award read to the parties was filed within the time limited by the parties themselves, there was no error on the face of the record and the ground of appeal failed.
Whether the reference to arbitration was irregular, premature and a nullity for non-compliance with Order LI on Summons for Directions, having regard to the bar in Order XLV rule 17(2).
No - an appeal from a decree in terms of an award lies only where the decree exceeds or departs from the award; in any event no error, irregularity or breach of procedure was found.
Order XLV rule 17(2) confines appeals from a decree entered in terms of an arbitral award to cases where the decree exceeds, or does not accord with, the award. The appellants' appeal was not brought on that ground. Examining the record anyway, the Court could find no error or irregularity in the award and no breach of procedure in the reference; nor did it accept that non-compliance with the Summons for Directions provisions of Order LI rendered the arbitration premature or a nullity. The second ground therefore also failed.
Whether the High Court erred in dismissing the appellants' application for review of the orders of 19th February 1997 and 11th June 1997.
No - the application for review was correctly dismissed because the appellants demonstrated no error on the face of the record or other sufficient reason.
Review under the Civil Procedure Rules requires an error apparent on the face of the record or other sufficient reason. The High Court had found the appellants' advocates unreasonably dilatory: a prudent advocate would know his causes in advance, contact opposing counsel if otherwise engaged, and would not take two years to set down an application to set aside an award. The Court of Appeal found no fault with that assessment, holding that since the appellants demonstrated no error or other reason, the application for review was correctly dismissed with costs.
Legal principles established
#- Parties to a consensual reference may extend the time for making the arbitral award even after the original time has expired, and an award filed within the time as so extended is valid and may be adopted as a judgment of the court.
- No appeal lies from a decree entered in terms of an arbitral award except insofar as the decree is in excess of, or not in accordance with, the award.
- A party seeking review of a court order must demonstrate an error on the face of the record or other sufficient reason; want of diligence by the applicant or their advocates will not supply such a reason.
Court orders
#- 1.The appeal was dismissed with costs.
- On appeal from
- High Court of Kenya at Nyeri
- H.C. C.C No. 192 "B" of 1992
- Jurisdiction invoked
- Not expressly invoked in the judgment; a first appeal to the Court of Appeal from a ruling of the High Court at Nyeri. The procedural provisions engaged are Order XLV rules 8(1), 17(1) and 17(2) and Order LI of the Civil Procedure Rules.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Ngunu Gikaria & another v Ephraim Maina Muriuki & another [2004] KECA 126 (KLR)", Case Analysis (2004). Civil Appeal No. 216 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2004/126/eng@2004-05-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.