Rimbi v Rimbi & another

Court of Appeal, at Nyeri

May 24, 1985

Hancox & Nyarangi JJ A, Gachuhi Ag JA

Civil Appeal No 4 of 1985

(Appeal from the Judgment of the High Court at Nyeri (J. S. Patel J) in Civil Appeal No 152 of 1983, dated 15th November, 1984)

Arbitration – arbitration award – award filed in court – party failing to have award set aside within the described time – judgment entered and consent order made in terms of the award – party appealing against award – whether appeal competent – Civil Procedure Rules order XLV.

Consent – judge recording consent adopting an arbitration award while an application to set aside the award by one of the parties is pending – whether consent is valid.

The appellant appealed against a consent order which directed him to give all documents necessary for the transfer of the disputed land to the respondents in terms of an award made by a panel of elders and subsequently adopted in the judgment of the court.

The appellant sought to set aside the award claiming that he had been shouted down before the elders and whatever he and his witnesses said was never recorded.

The award by the panel of elders was signed by the panel of elders and the parties and filed in court and subsequently read and explained to the parties. The appellant however did not file any application for setting aside the award as stipulated under Order XLV rule 16 of the Civil Procedure Rules nor was any application made for extension of time.

Judgment had therefore been entered in terms of the award.

Held:

1. Any party wishing to set aside an arbitration award must file an application within 30 days of receipt of notice of filing the award in court.

2. Under Order XLV rule 17 of the Civil Procedure Rules, judgment having been entered, no appeal could be filed against the judgment except where judgment is not in terms of the award.

3. The judge ought to have either dismissed the appellant’s application to set aside or have it withdrawn as it was out of time and it had been overtaken by the entering of the judgment, or he should at least have said something about it.

4. The appellant’s attack of the award had no basis as he had been precluded from attacking it by lapse of time and because his application to have the award set aside had nt been dealt with.

Appeal dismissed.

Cases

No cases referred to.

Statutes

Civil Procedure Rules (cap 21 Sub Leg) order XLV rules 16, 17

Advocates

Mr C C Patel for the Respondent.

Munyiri v Ndunguya

Court of Appeal, at Nyeri

May 24, 1985

Nyarangi JA, Platt & Gachuhi Ag JA

Civil Appeal No 60 of 1983

(Appeal from the High Court at Nyeri, VV Patel J)

Civil Practice and Procedure – consent order – consent judgment – whether appeal from consent judgment competent – remedy available to party dissatisfied with consent judgment – Civil Procedure Act (cap 21) section 67(2).

Appeal - from consent judgment - see Civil Practice and Procedure.

In a trial before the High Court between the appellant and the respondent, it was recorded in the presence of their advocates that by consent, the case be marked as settled and the terms upon which this settlement would proceed were stated. The appellant appealed, arguing, among other things, that no consent had been reached and that the judge should have entered judgement for the plaintiff in the case or dismissed the suit.

Held:

1. The parties had entered into what amounted to a consent order from which no appeal is allowed by section 67(2) of the Civil Procedure Act (cap 21).

2. The remedy that was open to the parties was to set aside the consent order either by review or by the bringing of a fresh suit as a court can only interfere with a consent judgment in such circumstances as would afford a good ground for varying or rescinding a contract between parties.

3. (Obiter) It would be wiser to obtain the signatures of the advocates or the parties to the consent judgments and orders.

Appeal dismissed.

Cases

1. Flora Wasike v Destimo Wamboko Civil Appeal No 81 of 84; (1982- 88) 1 KAR 625

2. Brooke Bond Liebig Ltd v Mallya [1975] EA 266

3. Hirani v Kassam (1952) 19 EACA 131

Statutes

Civil Procedure Act (cap 21) section 67(2)

Advocates

Mr. Ndirangu for the Applicant

Mr. CC patel for the Respondent

Wangechi Kimita v Wakibiru Mutahi

Court of Appeal, at Nyeri

May 23, 1985

Kneller, Hancox & Nyarangi JJA

Civil Appeal No 80 of 1985

(Appeal from the High Court at Nyeri, Patel J)

Review – power of - scope of - of High Court order – grounds on which court will grant review - order of subdivision and distribution of family land – discovery that size of land falsely stated by respondent – whether this is a sufficient reason for review – Civil Procedure Rules Order XLIV rule 1(1) – construction of rules.

Review - power of - nature of the power of - construction of statute – Civil Procedure Rules Order XLIV rule 1(1) – review of court order on account of discovery of new matter or of mistake or for any other sufficient reason – whether “for any other sufficient reason” to be construed ejusdem generis.

A dispute arose between the respondent and the appellants, who were widows of the respondent’s deceased brothers, over certain family land registered in the respondent’s name. In the ensuing litigation, though there was no statement of the acreage of the disputed land both in the pleadings and in the proceedings, the High Court made an order, with the consent of the parties, that the respondent do transfer 0.75 acres of the suit land to each appellant. Later, after a survey of the land, the appellants applied for a review of this order on the ground that the respondent had falsely understated the acreage of the land. Consequently, the appellants asked for an order subdividing the land in bigger portions than those stated in the consent order. The application for review was dismissed and the appellants appealed.

Held:

1. The third head under Order XLIV rule 1(1) of the Civil Procedure Rules enabling a party to apply for review “for any other sufficient reason” is not necessarily confined to the kind of reasons stated in the two preceding heads in that sub-rule which do not form a genus or class of things analogous to that general head.
2. The acts of the appellants in visiting the land and establishing its acreage was sufficient reason analogous to discovery of new and important matter and in the wording of order XLIV rule 1 of the Civil Procedure Rules, amounted to “any other sufficient reason” for applying for a review of the High Court order.
3. (Obiter) In no circumstances should a court make an order to allocate or apportion land whose acreage and location is not specifically stated as that is an essential and crucial particular.

Appeal allowed, High Court order reviewed.

Cases

1. Tanitalia Ltd v Mawa Handles Ansalt [1951] EA 215
2. Sardar Mohamed v Charan Singh [1959] EA 793
3. Ahmed Hassem Mulji v Shirinbai Jadavji [1963] EA 217
4. Yusuf v Norkrach [1971] EA 104
5. Flora N Wasike v Destimo Wamboki Civil Appeal No 81 of 1984; (1982- 88) 1 KAR 625

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order XLIV rule 1
2. Civil Procedure Act (cap 21) section 67(2)
3. Appellate Jurisdiction Act (cap 9) section 3(2)

Advocates

Mr. Ghadially for the Respondent

Land - adverse possession - whether purchaser can rightly claim adverse possession - when does a claim for adverse possession arise. Land - overriding rights - rights under limitation of actions - whether they qualify as overriding rights. Civil Pract