Shem Sega Musala v Wilfred Safan Munyonge & 2 others [2015] KECA 198 (KLR)
The bottom line
#The Court of Appeal dismissed an 18-year-late challenge to a family land arbitration award, confirming that waiting too long to object means losing your right to complain.
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 appellant was denied an opportunity to be heard when the arbitration award made by the District Officer and 4 elders was read and adopted as a judgment of the court in his absence
- 2.Whether the High Court erred in allowing the 2nd respondent's application to enforce the eviction order notwithstanding the alleged expiry of the decree
- 3.Whether Wilfred M. Musala and Wilfred Safan Munyonge were one and the same person such that the 2nd respondent could lawfully participate in the proceedings
Key legal issues
#Whether the appellant was denied a hearing when the award was read in his absence
No denial of natural justice: the appellant was present on 16th November 1995 when judgment was entered and could still have applied under Order XLV rules 13, 14 or 15, but did not; his delay of 18 years and subsequent consent to subdivision constituted acquiescence.
The court examined Order XLV rules 10, 10A, 16 and 17 of the repealed Civil Procedure Rules, which mandate notice of filing of an award and a 30-day window for applications to modify, remit or set aside. Although the appellant was absent when the award was read, judgment had not yet been entered, so he retained the opportunity to object or apply on 16th November 1995. His failure, followed by a consent to subdivision, amounted to acquiescence and rendered his application time barred.
Whether the decree sought to be enforced had expired under the Limitation of Actions Act
The 2nd respondent's application of 14th December 2012 sought police assistance to enforce the eviction order of 26th November 2012, not the 1995 judgment, and was therefore well within the 12-year limitation period under section 4(4) of the Limitation of Actions Act.
The appellant conflated the 1995 judgment with the 2012 eviction order. The order actually being enforced was made on 26th November 2012 following subdivision and apportionment of the portions; enforcement of that order by police assistance was sought within weeks. The 12-year limitation period stipulated by section 4(4) of the Limitation of Actions Act was therefore not breached, and the ground of appeal failed.
Whether Wilfred M. Musala and Wilfred Safan Munyonge were different persons
They were one and the same person, as the appellant's own further affidavit confirmed, and no prejudice was suffered by the appellant.
The appellant alleged the 2nd respondent was a stranger to the suit because the pleadings named Wilfred M. Musala. The Court found from the 2nd respondent's further affidavit filed in the High Court on 9th December 2013 that both names belonged to the same person. The Court was satisfied there was no misjoinder or stranger issue and no prejudice to the appellant; the ground failed.
Legal principles established
#- An appellate court will not interfere with findings of fact by the trial court unless they are not based on evidence, are a misapprehension of the evidence, or the trial judge acted on a wrong principle.
- A party who is present in court when judgment is entered in terms of an arbitration award, and who does not object or apply within the statutory 30-day window under Order XLV rule 16, and who thereafter consents to implementation of the award, acquiesces in the award and cannot seek its setting aside years later.
Court orders
#- 1.Appeal dismissed
- 2.Costs of the appeal awarded to the 2nd respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kisii
- Kisii H.C.C.C. No. 251 of 1992
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court (constitutional and statutory appellate jurisdiction; specific provision not stated in the judgment)
Relief refused
#Setting aside of the judgment of 16th November 1995 entered in terms of the arbitration award
The application was out of time; the appellant was present when judgment was entered and later consented to subdivision, amounting to acquiescence
Eviction of the respondents from the suit property and permanent injunction sought in the appellant's counterclaim
The suit property had been subdivided and portions allocated to each party pursuant to a consent order
Costs
Appeal dismissed, with costs to the 2nd respondent.
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.
In conclusion, we find no reason to interfere with the ruling of the court below. Accordingly, this appeal is dismissed, with costs to the 2nd respondent.
the totality of his actions must then be construed as acquiescence to the award, the proceedings as they took place in court, and the resultant judgment
this Court is not minded to interfere with the findings of fact by the trial court unless they are not based on evidence or are a misapprehension of the evidence or that the trial judge is shown to have acted on a wrong principle
We find that the application is time barred, and the High Court was right to decline to set aside the award.
Issues in the judgment
#The judgment refers inconsistently to the 2nd respondent's application date as 14th December 2012 in the narrative but as 14th November 2013 (and 'application dated 14th December 2013' in the grounds of appeal) when discussing the enforcement application.
The judgment refers to entry of judgment 'in terms of the award in the presence of the 2nd respondent and the appellant' on 16th November 1995, while elsewhere describing the appellant as having been absent when the award was read; the two events (reading of the award and entry of judgment) occur on different dates but the narrative is potentially confusing.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shem Sega Musala v Wilfred Safan Munyonge & 2 others [2015] KECA 198 (KLR)", Case Analysis (2015). Civil Appeal No. 40 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/198/eng@2015-11-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.