Wangai V Njeru  EKLR
|Civil Appeal 117 of 1990||29 Jul 1993|
Abdul Majid Cockar, John Mwangi Gachuhi, Mathew Guy Muli
Court of Appeal at Nyeri
Wangai v Njeru
Wangai v Njeru  eKLR
Wangai v Njeru
Court of Appeal, at Nyeri July 29, 1993
Gachuhi, Cockar & Muli JJ A
Civil Appeal No 117 of 1990
(Appeal from an order of the High Court of Kenya at Nyeri (Abdulla J)
dated 28th September, 1989 in HCCC No 120 of 1983)
Arbitration - award – amendment of arbitration award – circumstances in which an arbitral award may be amended – order 45 rule 13 Civil Procedure Rules.
The respondent sought eviction of the appellant, her stepmother, from the suit land which was registered in the respondent’s name as an absolute proprietor. The land had been given to her by her late father as a gift. The appellant contested the suit arguing that the respondent being a married woman was forbidden by custom from inheriting the land.
By consent of the parties the matter was referred to a single arbitrator who rejected the prayer for eviction but recommended that the land should be divided equally between the parties. The appellant did not apply for the setting aside of the award but instead sought an amendment so that she could be awarded 8 acres instead of 5. The High Court dismissed the application as incompetent hence the appeal.
1. Under section 85 (1) of the Registered Land Act a proprietor may transfer land, lease or charge to any person including himself with or without consideration by an instrument in the prescribed form. A transfer by way of gift would be under this section.
2. The transfer as a gift was never challenged before the action for eviction was instituted and customary inheritance could not be a ground for amending the award.
3. An award may be modified or corrected under Order XLIV rule 13 of the Civil Procedure Rules where an award is on a matter not referred to arbitration, is imperfect in form or contains a clerical mistake or an error from accidental slip or omission.
4. The amendment being sought being not on any of the above grounds but on matters of hardship and contrary to customary law, the application was incompetent.
No cases referred.
1. Civil Procedure Rules (cap 21 Sub Leg) or order XLII rule 1(b); order XLIV
2. Registered Land Act (cap 300) sections 27, 85(1)