Appeal-extension of time to file notice of appeal-considerations of the court in determining whether to grant the application

 CIVIL APPEAL NO 74 OF 1997

CIVIL PRACTICE AND PROCEDURE- pleadings- notice of motion- amendment of a notice of motion- where one files a notice of motion then later seeks to amend the same during the hearing without leave of the court- where the said amended notice of motion is eventually struck out by the court for failure to obtain leave- whether striking out of motion proper.

ARBITRATION- signing of the award- where reference is made to a District Officer to arbitrate on a matter- where the said district officer engages advisory services of  four elders- where upon making a finding the DO alone signs the award- whether failure by the elders to sign the said award can be a ground for an appeal

EVIDENCE- misconduct- allegation of misconduct on the part of an arbitrator- where the said allegation of misconduct is raised but evidence isn’t given to support the same- effect of such failure to give evidence

SUMMARY OF THE FACTS

This is was appeal against an order of the Superior Court (Ang’awa, J) given at Nyeri on 30^th June, 1994, in which she declined to set aside and arbitration award which had been filed in her court on 11^th March, 1993. The application to set aside the award was brought by Nyamiru Mathai (the appellant) and named Mwangi Hinga (the respondent) as the respondent.

Litigation between the parties started but the parties later stopped them and agreed to refer the matter to an arbitrator. Various references were made but the last was made to the District Officer othaya who was assisted by four elders with each party nominating two of them. The District Officer’s award was read to the parties by the court on 4^th November, 1993. It is that award which by her application dated 16^th November, 1993, the appellant wanted set aside. The appellant raised various grounds of appeal at the high court .These were (i) the award was signed by the DO alone and wasn’t signed by the four elders, and further (ii) that there was misconduct on the part of the DO in failing to appreciate the fact that the respondents witnesses in the arbitration were not from the parties clan and therefore knew nothing about the land dispute. He however never gave evidence to support this.

During the hearing of the said application in the High Court the appellant amended the Notice of Motion without seeking leave of the court and when the amended notice of motion came up, the high court struck out the same contending that leave was necessary. It is that application which Ang’awa; J. disallowed and thereby provoked this appeal.

HELD

1. With due respect to the learned Judge, the court of appeal does not think that leave to amend notice of motion was essential and the motion was improperly struck out. The conclusion of the court notwithstanding, because the prayers in the original and amended motion were the same, the court does not think the striking out of the motion worked any prejudice to the appellant and is curable under section 79 A of the Civil Procedure Act.
2. The Court of Appeal thinks rightly, that the reference having been made to the District Officer, Othaya, only he was entitled to sign the award. From the wording of the order of reference it is quite clear that the role of the four elders who were to assist him in the arbitration was merely advisory and their failure to sign the award was inconsequential.    

3. The appellant did not establish by evidence that the arbitrator had misconducted himself.

Appeal dismissed.