Criminal Law-appeal-ground of appeal were that the complainant did not identify him-that the trial magistrate had failed to consider all the evidence

Kenindia Assurance Co Ltd v Muturi

Court of Appeal, at Nyeri May 31, 1994

Gachuhi, Kwach & Akiwumi JJ A

Civil Appeal No 87 of 1993

(Appeal from the ruling of the High Court of Kenya at Meru  (Mr Justice Kuloba) dated 11th day of May, 1993 in  HCCC No 114 of 1990)

Arbitration – insurance contract providing for arbitration in event of dispute – whether a party can sue prior to undergoing arbitration process.

Civil Practice and Procedure – stay of suit – parties consenting to stay of suit pending arbitration – one party dissatisfied with delays in arbitration process and fixing the suit for hearing without first setting aside the stay order – whether subsequent hearing and determination of the suit was valid.

The respondent sued the appellant seeking compensation for loss of his vehicle which was completely damaged as a result of an accident.

The appellant however relying on an arbitration clause in the insurance contract asked for the stay of the suit pending arbitration. This position was accepted by the respondent and the case was stayed by consent of the parties.

The arbitration process however ran into problems with the respondent complaining that the appellant was using it to delay the settlement of the claim. Consequently the respondent returned to Court to have the case fixed for hearing. Despite the fact that the Court acceded to the request and gave a hearing date no application was made to set aside the stay order granted by consent earlier.

When the suit came up for hearing, counsel for the appellant brought to the attention of the trial judge the fact that the stay order which was made by consent had not been set aside. On that ground, he contended that the suit could not possibly proceed to hearing.

Counsel further contended that the completion of the arbitration proceedings and the making of an award was a precondition to filing any action in Court.

The trial court however dismissed the objections by the appellant’s counsel and proceeded to hear the suit.

Held:

1. The making of an award after an arbitration is what shall give rise to any right of action against the appellant.

2. If no arbitration is first carried out, no matter how dilatory the tactics of a party to it may be, the insured cannot bring an action against the insurer arising out of the policy of insurance unless perhaps it can be shown that the insurer was fraudulently and deliberately frustrating the determination of the arbitration proceedings.

3. A consent judgment may only be set aside for fraud, collusion or for any reason which would enable the Court to set aside an agreement.

4. The substantive order of stay of proceedings could not be set aside by a side wind within the context of an informal application for fixing a hearing date.

5. The proceedings in the suit in the High Court remained stayed and the suit could not have gone on for hearing and what hearing took place was null and void.

Appeal allowed.

Cases

Brooke Bond Liebig (T) Ltd v Mallya [1975] EA 266

Statutes

Arbitration Act (cap 49) sections 6, 9, 12

Advocates

Mr Ghadialy for the Appellant

Mr Mithega for the Respondent

Gathute v Wambugu & another

Court of Appeal, at Nyeri May 12, 1994

Gicheru, Kwach & Muli JJ A

Civil Appeal No 33 of 1991

(Appeal from the judgment and decree of the High Court of   Kenya at Nyeri (Tunoi, J) dated the 8th October, 1990 in  HCC Appeal No 3 of 1990)

Succession – confirmation of grant – application for– duties of the Deputy Registrar on an application for confirmation of grant – section 71(2) Law of Succession Act.

Succession – confirmation of grant– beneficiaries in dispute over their share of the estate – Deputy Registrar referring the dispute to arbitration by elders - whether an award made after arbitration is enforceable.

The appellant and the respondents petitioned the Resident Magistrate’s Court at Nyeri for grant of letters of administration of their deceased father’s estate. A temporary grant was issued and subsequently the appellant applied for confirmation which was resisted by the respondents.

The Deputy Registrar who was scheduled to hear the application adjourned it to enable the parties to try a settlement out of Court with the help of clan elders without making a formal order in that respect. The elders heard the dispute and made an award which the appellant did not like prompting her to apply for it to be set aside. The Deputy Registrar as well as the High Court dismissed the appellant’s application for setting aside hence the appeal.

Held:

1. The application for confirmation of grant is to empower distribution of any capital assets by the holder of the grant.

2. There was clearly no order referring the dispute to arbitration and the so called award filed in Court was a nullity and the Deputy Registrar should have set it aside when the appellant asked him to do so.

3. In cases of intestacy, the grant of letters of administration shall not be confirmed until the Court is satisfied as to the respective identities and shares of all persons beneficially entitled.

4. The Deputy Registrar was enjoined by express provisions of the law to hear and determine the application for confirmation of the grant as well as to satisfy himself as to the respective identities and shares of all persons beneficially entitled. In purporting to delegate this duty to the arbitrators, he abdicated his statutory responsibility.

Appeal allowed.

Cases

No cases referred to.

Statutes

1. Law of Succession Act (cap 160) sections 48, 71, 71(1), (2)

2. Probate and Administration Rules (cap 160 Sub Leg) rule 40(6)

3. Civil Procedure Rules (cap 21 Sub Leg) order XLV rule 1

Advocates

Mr Waweru for the Appellant