John Mwangi Gachuhi, James Onyiego Nyarangi, Alan Robin Winston Hancox
Irungu Kihuni v Wambugu Gakunga & Moses Ndumia King’ori
Irungu Kihuni v Wambugu Gakunga & another  eKLR
Kihuni v Gakunga & another
Court of Appeal, at Nyeri October 9, 1986
Hancox, Nyarangi JJA & Gachuhi Ag JA
Civil Appeal No 61 of 1985
(Appeal from the High Court at Nyeri, Patel J)
Arbitration – reference to – upon agreement of parties - whether reference can subsequently be challenged by the same parties who requested it – discretion of the court when ordering reference – when an award can be remitted for reconsideration.
Arbitration – issues - referred to arbitration – powers of the arbitrators to deal with issues – whether arbitrators can deal with issues not referred to them.
Civil Practice and Procedure – amendment of pleadings – at appeal – power to grant order to amend – exercise of such power.
The respondents had sued the appellants for a declaration that they were joint owners of the suit property and in the alternative sought compensation. The parties at some stage agreed to refer the matter to arbitration. Subsequently the arbitrator’s award was read out, upon which the appellant made an application to set it aside. The application was dismissed prompting this appeal on the ground that the judge in dismissing the application had failed to see the legal issues, to note the case was time barred, that the respondents had proved their case and that the award and ruling was against the weight of the evidence.
1. A party cannot be heard to challenge issues referred to arbitration, especially in a case such as this where the parties and their respective advocates drew the issues. The parties are deemed to know the real questions between them.
2. The arbitrators will consider evidence on issues which are referred to them. The issue of limitation was raised in the defence but was not brought before the arbitrators. That aspect of his defence as far as the arbitration was concerned is deemed to have been abandoned.
3. Failure to deliberate or otherwise to frame a particular issue cannot be construed as an admission.
4. In any suit, where parties not under disability agree that any matter between them be referred to arbitration, as the case was here, the court has no discretion in the matter once the parties apply to the court for an order of reference.
5. Once parties have obtained an order for reference to arbitration subsequent to their own application, they are estopped from attacking the order of reference.
6. An estoppel can arise from silence or inaction if a party is under a duty to speak or to act in a particular way.
7. According to the Civil Procedure Rules order XLV rule 14(1)(c), an award can only be remitted for re-consideration by arbitrators where there has been an objection to the legality of the award which is apparent on the face of the record.
8. Although the court has the power on appeal to give leave to a party to amend his pleadings, such leave is only given where there has been an inadvertent omission and where all the material necessary is before the court and there is no need for further evidence to be taken.
9. Res judicata is a matter of pleading and can only be properly raised at the trial.
Ground 3 of Memorandum of appeal dismissed. Leave to amend accordingly refused, orders accordingly.
1. Darcy v Jones  EA 121
2. Oriental Dairy v De Souza (1948) 23 (1) KLR 4
3. Moorgate Mercantile Co v Twitchings  AC 890;  3 All ER
314 (CA); Reversed in  2 All ER 641 (HL)
4. Mandavia v Singh  EA 118
5. Jupiter General Insurance Co Ltd v Rajabali Hasham & Sons  EA 592
6. Jani (G.P) Properties Ltd v Dar-es-Salaam City Council  EA 281
1. Limitation of Actions Act (cap 22)
2. Civil Procedure Rules (cap 21 Sub Leg) order XLV rules 1,3,14(1)(c)
Mr Wamae for the Respondents.
Mr Gatimu for the Appellant.