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ELCDismissedELC Case No. 336 of 2013· [2018] KEELC 4029 (KLR)

Nashon W Nabibia v Ben Wanyama Tabani [2018] KEELC 4029 (KLR)

High Court of Kenya, Environment and Land Court
21 February 2018
534 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to overturn an arbitration award, confirming that merely disagreeing with an award's outcome is not enough to set it aside.

What this practically means

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Executive summary

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This is a ruling of the High Court at Bungoma (ELC Case No. 336 of 2013) delivered by S. Mukunya J on 21 February 2018 in a land dispute between Nashon W. Nabibia (plaintiff) and Ben Wanyama Tabani (defendant). The dispute had been referred to arbitration by consent of the parties, and an award dated 11 September 2015 issued. The applicant moved the court under Section 35(2) of the Arbitration Act and Order 46 rule 16(1)(a) and Order 57 rule (1) of the Civil Procedure Rules 2010 seeking to set aside the award on grounds that the award of one acre to the plaintiff was unjust, that the arbitration was made in bad faith, that an award of half an acre was bad on its face, and that awarding half an acre instead of two acres was unreasonable and shocked the conscience of the court. The applicant relied on Total Uganda Ltd v Buram General Agencies and Scott v Brown, Doering, McNab & Co. The respondent countered that the application was incompetent because the arbitrator had not been served to respond to the allegations. The court held that a consent reference can only be set aside on grounds of corruption or misconduct of the arbitrator or fraudulent concealment or deception, none of which was alleged; that the service requirement under Order 46 rule 16(2) is mandatory and was not satisfied; and that the cited authorities were irrelevant. The application was dismissed with costs to the respondent and judgment was entered in terms of the award.

Key legal issues

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01

Whether the award should be set aside for misconduct or bad faith

Holding

No corruption, misconduct, fraudulent concealment or deception of the arbitrator was established; the applicant's complaints went to the merits of the award, not statutory grounds for setting it aside

Reasoning

The court held that under the applicable provisions, an award may be set aside only for corruption or misconduct of the arbitrator, or where a party fraudulently concealed a matter or wilfully deceived the arbitrator. The applicant alleged only that the award was unjust, unreasonable and made in bad faith, without showing dishonesty, fraud, collusion or corruption. Such disagreements with the award's substance do not meet the statutory threshold.

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02

Whether the application was competent absent service on the arbitrator

Holding

The application was incompetent because the arbitrator, who would need to respond to allegations of non-consideration of evidence, was never served

Reasoning

The respondent argued, and the court agreed, that allegations that the arbitrator failed to consider evidence could only be validly asserted if the arbitrator was served and given an opportunity to reply, as required under Order 46 rule 16(2). That requirement was held to be mandatory, and there was no evidence of service, rendering the application incompetent.

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03

Relevance of the applicant's cited authorities

Holding

The authorities relied on by the applicant on misconduct and illegal contracts were held to be irrelevant to the case

Reasoning

The applicant relied on Total Uganda Ltd v Buram General Agencies and Scott v Brown, Doering, McNab & Co. on elements of misconduct and illegal contracts. The court found these authorities inapplicable, as the applicant had not demonstrated the elements of misconduct they addressed, and dismissed the application on that basis.

p. 1

Legal principles established

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  • Once a matter is referred to arbitration by consent, the award can only be set aside on the statutory grounds of corruption or misconduct of the arbitrator, or fraudulent concealment or deception of the arbitrator, and the application must be served on the arbitrator
  • Service of an application to set aside an award on the arbitrator is mandatory

Court orders

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  1. 1.The Notice of Motion seeking to set aside the arbitration award is dismissed
  2. 2.Costs awarded to the respondent
  3. 3.Judgment entered in terms of the arbitration award dated 11/9/2015
Jurisdiction invoked
Section 35(2) of the Arbitration Act No. 4 of 1995; Order 46 rule 16(1)(a) and Order 57 rule (1) of the Civil Procedure Rules 2010

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, "Nashon W Nabibia v Ben Wanyama Tabani [2018] KEELC 4029 (KLR)", Case Analysis (2018). ELC Case No. 336 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4029/eng@2018-02-21

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