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ELCOtherELC Case OS E008 of 2021· [2021] KEELC 259 (KLR)

Vincent Mabonga Wabule v Jacob Simiyu Wabule [2021] KEELC 259 (KLR)

Environment and Land Court
2 December 2021
BOBoaz N. Olao
660 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Bungoma Environment and Land Court threw out a clan arbitration award after finding the clan officials were biased against one sibling in a family land dispute.

What this practically means

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Executive summary

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In this Environment and Land Court matter at Bungoma, the plaintiff and defendant, who are siblings, were engaged in a land dispute pending on an Originating Summons. The BAKITWIKA (BATUKWITA) Association clan leadership had written on 12th October 2021 seeking leave to arbitrate the dispute, and the court facilitated this in the spirit of Article 159(2)(c) of the Constitution and the pursuit of Alternative Justice in family disputes. On 9th November 2021 the parties agreed before the Deputy Registrar to pursue an out-of-court settlement, and the clan filed an award dated 14th November 2021 with a report filed on 23rd November 2021. However, when the parties and clan officials appeared on 2nd December 2021, lengthy off-record deliberations revealed that the clan officials, including Assistant Secretary General Edward Ngoya Masakha and Charles Wamalwa Baraza, were conflicted and could not render an impartial and objective resolution. Judge Boaz N. Olao expunged the clan award from the record and returned it to the clan. The court also learnt that the Respondent is a sick person who had not filed a response and may not have been served; Mr Murunga agreed to act pro bono for him, and the matter was set for mention on 19th January 2022. The two clan officials, having taken the original sale agreement from the Applicant, were bonded in Kshs. 10,000/= each to produce it; upon its production later that day, they were discharged. No costs order was made and the suit remains pending.

Key legal issues

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01

Impartiality of clan arbitrators in a family dispute

Holding

The court found the clan officials conflicted and expunged their award from the record, returning it to them.

Reasoning

The clan had written seeking to arbitrate a sibling land dispute, and the court initially facilitated this in the spirit of Article 159(2)(c) promoting Alternative Justice. However, off-record deliberations on 2nd December 2021 with the parties, counsel and clan officials revealed that the officials were conflicted and could not render an impartial and objective resolution, justifying removal of their award from the record.

p. 1
02

Safeguarding the original sale agreement taken by clan officials

Holding

The officials were bonded in Kshs. 10,000/= each and directed to return the original agreement to the Applicant's counsel; upon production they were discharged.

Reasoning

The court learnt that the Assistant Secretary General and another clan official had taken the original sale agreement from the Applicant. To secure its production, the court bonded them in Kshs. 10,000/= each with a deadline of 8th December 2021. The agreement was availed later the same day and both officials were discharged.

p. 2

Legal principles established

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  • Arbitrators who are conflicted cannot be expected to arbitrate impartially and objectively

Court orders

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  1. 1.The clan's award dated 14th November 2021, forwarded vide letter dated 19th November 2021, is expunged from the record and returned to the clan
  2. 2.MR EDWARD NGOYA MASAKHA and MR CHARLES WAMALWA BARAZA to be bonded in the sum of Kshs. 10,000/= each and to produce the original sale agreement and hand it over to Mr Simiyu, Counsel for the Applicant, on or before 8th December 2021
  3. 3.MR MURUNGA to act pro bono on behalf of the Respondent, with time granted to take instructions and file a response to the Originating Summons
  4. 4.Matter to be mentioned on 19th January 2022
  5. 5.Upon the original agreement being availed later the same day, MR EDWARD NGOYA MASAKHA and MR CHARLES WAMALWA BARAZA discharged

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(c)
Jurisdiction invoked
Article 159(2)(c) of the Constitution (Alternative Justice route invoked in furtherance of settlement)

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, "Vincent Mabonga Wabule v Jacob Simiyu Wabule [2021] KEELC 259 (KLR)", Case Analysis (2021). ELC Case OS E008 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/259/eng@2021-12-02

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