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ELCPartially Allowed· [2019] KEELC 2536 (KLR)

Nancy Nyawira & another v Archer Dramond Morgan Ltd; Chief Land Registrar (Interested Party) [2019] KEELC 2536 (KLR)

Environment and Land Court
5 July 2019
2,769 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court evicted a buyer who delayed appealing an arbitration-backed judgment, showing appeals without required leave go nowhere.

What this practically means

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Executive summary

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This Environment and Land Court decision at Machakos by O.A. Angote J dealt with two competing applications arising from a 2009 sale agreement dispute over Unit No. 8 on L.R. No. 27317 (I.R. No. 100328/1), Hillcrest Park, off Mombasa Road. The dispute had been referred to arbitration by consent, and the arbitrator's Final Award of 16th December 2009 directed the Defendant vendor to deliver the unit to the Plaintiffs. The court adopted the award as its judgment on 15th February 2012, ordering it enforced as a decree with costs to the Plaintiffs. The Defendant filed a Notice of Motion seeking extension of time to file and serve a Notice of Intention to Appeal and to lodge an appeal out of time against that Ruling, blaming non-service of the delivery notice and a missing court file later reconstructed in January 2014. The Plaintiffs opposed, citing inordinate delay, and filed their own application seeking disclosure by the Chief Land Registrar of the registered owner of the suit property, eviction of the Defendant and its agents, and execution of transfer instruments by the Deputy Registrar. The court held that under Section 39(3) of the Arbitration Act an appeal lies only where the arbitration agreement so provides or with leave, neither of which existed; the Defendant's extension-of-time application was therefore 'dead in water' for want of jurisdiction. In any event, the application suffered unexplained delay. The Defendant's application was dismissed with costs and the Plaintiffs' application allowed, with orders for disclosure of ownership, eviction, and execution of transfer instruments by the Deputy Registrar, with costs to the Plaintiffs.

Key legal issues

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01

Whether the court had jurisdiction to entertain the Defendant's application for extension of time to appeal

Holding

The application was dismissed for want of jurisdiction since the Defendant never sought leave to appeal and the arbitration clause conferred no automatic right of appeal under Section 39(3) of the Arbitration Act

Reasoning

The suit was decided on an arbitral award adopted as a judgment of the court. Section 39(3) of the Arbitration Act permits an appeal to the Court of Appeal only where the arbitration agreement provided for an automatic right of appeal or where leave is granted by the High Court or Court of Appeal. The Defendant sought extension of time before obtaining leave, which the Court of Appeal in Peter Nyaga Muvake held renders such an application 'dead in water'. The court therefore had no jurisdiction over the application as worded.

p. 3
02

Whether the Defendant's application for extension of time was brought without unreasonable delay

Holding

The application was delayed; the Defendant did not explain the lapse of almost two years from reconstruction of the court file in January 2014 to filing the application in December 2015

Reasoning

The Defendant's advocate admitted awareness of the Ruling on 5th December 2013 and that the file was reconstructed on 21st January 2014. The Defendant should have proactively reconstructed the file itself but instead waited for the Plaintiffs to do so, then took a further twenty-two months to file. The court found such an attitude disentitled the Defendant to the exercise of its discretion, and that further delay in execution prejudiced the Plaintiffs who had not enjoyed their judgment since 2009.

p. 4
03

Whether the Plaintiffs' application for transfer of the suit property and eviction should be granted

Holding

The Plaintiffs' Notice of Motion dated 13th June, 2018 was allowed in full

Reasoning

The arbitral award of 16th December 2009 directed the Defendant to deliver Unit No. 8 Phase 1 Hillcrest Park on L.R. No. 27317 to the Plaintiffs and was adopted as a judgment of the court on 15th February 2012, enforceable as a decree. The Defendant had never transferred the property and the Plaintiffs had not enjoyed the fruits of their judgment since 2009. The court therefore directed the Chief Land Registrar to disclose the registered owner, issued an eviction order, and directed the Deputy Registrar to sign the transfer instruments in place of the Defendant.

p. 4

Legal principles established

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  • Under Section 39(3) of the Arbitration Act, an appeal from a decision arising from an arbitral award lies to the Court of Appeal only where the arbitration agreement provided for such a right or where leave is granted by the High Court or Court of Appeal on a point of law of general importance
  • Where leave to appeal is a prerequisite, obtaining leave is a condition precedent to lodging a valid Notice of Appeal; without leave there is no valid Notice of Appeal and the appellate court's jurisdiction is not invoked
  • The principles for extension of time to appeal are that the intended appeal must not be frivolous, the application must be made without unreasonable delay, and the respondent must not suffer undue prejudice

Court orders

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  1. 1.The Defendant's Application dated 8th May, 2015 is dismissed with costs
  2. 2.The Chief Land Registrar directed to supply to the Plaintiffs details of the registered owner of L.R No. 27317 (I.R No. 100328/1)
  3. 3.An order of eviction issued directing the Court Bailiff to evict the Defendant, its agents and all persons claiming through the Defendant from L.R. No. 27317 (I.R. No. 100328/1)
  4. 4.The Deputy Registrar of the Court directed to sign all necessary instruments of transfer instead of the Defendant so as to vest L.R. No. 27317 (I.R. No. 100328/1) in favour of the Plaintiff
  5. 5.Costs of the Plaintiffs' Application to be paid by the Defendant

Authorities

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Legislation

  • Arbitration ActSection 39(3)
  • Appellate Jurisdiction ActSection 7
  • Court of Appeal RulesRules 42, 75 and 82
  • Civil Procedure ActSection 75
  • Civil Procedure RulesOrder 43

Cases cited (3)

  • Chemwolo Toroitich vs. Paul Bulut & Anor
    Civil Appeal No. Eldoret 262 of 2006
  • Kenyatta International Convention Centre vs. Greenstar Systems Limited
    (2018) eKLR
  • Peter Nyaga Muvake vs. Joseph Mutunga
    Nairobi Civil Appeal No. 86 of 2015
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a suit for specific performance of a sale agreement referred to arbitration; applications under Section 7 of the Appellate Jurisdiction Act and Section 39(3) of the Arbitration Act

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, "Nancy Nyawira & another v Archer Dramond Morgan Ltd; Chief Land Registrar (Interested Party) [2019] KEELC 2536 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2536/eng@2019-07-05

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