Cecilia Situmai Ndeti and Michael Kyende Ndeti & Being the Legal Representative of Professor Kibuto Ndeti (Deceased) v Idah Ndinda Ndeti & Being the Personal Representative of Patrick Mutheke Ndeti (Deceased) [2014] KECA 468 (KLR)

IN THE  COURT OF APPEAL

AT NAIROBI

(CORAM:   WAKI,  GATEMBU  & J. MOHAMMED, JJ.A)

CIVIL  APPEAL NO. 56 OF 2013

BETWEEN

CECILIA SITUMAI NDETI  and MICHAEL KYENDE  NDETI

Being the legal representative of

PROFESSOR  KIBUTO  NDETI  (Deceased)………….……. APPELLANTS

AND

IDAH  NDINDA  NDETI

Being the personal representative of

PATRICK MUTHEKE NDETI  (Deceased)……………… RESPONDENTS

(Beingan  Appeal  from  the  Ruling and  Order  of  the  High

Court at Nairobi  (Ang’awa, J) dated  12thMarch, 2008 in

H.C.C.C  NO. 430  OF 1981

************

JUDGMENT OF THE  COURT

1.  This is an appeal from  the ruling of the High  Court (Angawa J) in High  Court Civil  Case  Number 430  of  1981  delivered   on  12th March 2008  dismissing an application dated  11th  October  2006 by Dr.  Kivuto Ndeti (Dr. Ndeti).  In  that application made  under Order 49  rule 5  and  Order 45  rule 15  of  the Civil  Procedure Rules,  Dr. Ndeti sought orders for enlargement  of  time  within which  to make  the application  and  for  the  application  to  be deemed  to be made  in  time; an  order to set  aside  an  arbitral award and judgment entered by the court consequent upon  that award; an  order for the case to proceed  to hearing before  the High  Court and an order for provision of costs of the application. Dr. Ndeti is now deceased. The appellants, Cecilia  Situmai Ndeti and Michael Kyende Ndeti,  the personal representatives of his estate, represent him  in this appeal.

Background

2.  The litigation leading  up  to the present appeal  goes back  some 33  years. In  1981  Patrick Mutheke Ndeti,  (Mutheke)  filed  suit against  his uncle  Dr. Ndeti. Mutheke is also deceased. The Respondent,  Idah   Ndinda   Ndeti,   represents  his  estate  in  this appeal.  In  that suit Mutheke claimed  that he  was  entitled,  as lawful owner,  to possession  of a portion of approximately 3 acres of land  being part of the property known as L.R. number 7149/9 (the  land)  comprising of approximately 100  acres  registered  in the name  of Dr.  Ndeti.  Mutheke contended  that under Akamba customary law the land  belonged to and was to be shared by members  a family called  Ndeti family, of which he was part; that Dr.  Ndeti  was  registered  as  owner   of  the  land   in   trust  for members  of the Ndeti family and that in breach of that trust Dr. Ndeti was wrongfully seeking  to dispose  the land  or portions or subdivisions thereof.

3.  On those facts,  Mutheke sought judgment against  Dr. Ndeti for a declaration that any transfer of the Land  or any portion or sub­ division  thereof   is   void;   an   order  to restrain   the  Principal Registrar of titles from transferring the land  or any portion or sub­division thereof; a perpetual injunction to restrain Dr. Ndeti from selling  the land  or any portion or sub­division thereof; a declaration that the land  belongs to Ndeti Family under Akamba customary law; a declaration that a portion of 3 acres of the land upon  which Mutheke erected a dwelling house( “the property”) is Mutheke’s exclusive  property; an  order for Dr. Ndeti to execute appropriate conveyances  to transfer the land  to the Ndeti family and the property to Mutheke. In the alternative Mutheke sought damages.

4.   In  his  defence,  Dr.  Ndeti denied  Mutheke’s claims  and  averred that  he  solely   bought  the  land   in   1969;   that  the  land   is registered in  his  name  under the provisions of the now repealed Registration of Titles  Act;  that to his  knowledge  no organization known as  Ndeti family existed;   that he  was  not  registered as owner  of the land  as a trustee  for the Ndeti family as alleged; that  Mutheke occupied   a  residential  house  on  the land   as  a licencee   under  a  licence   granted  to  him   at  the  request  a partnership in  the name  of P. N. Ndeti and  Brothers; that that licence  was  lawfully terminated by  notice dated  18th  December 1980   and  that  Mutheke’s suit  should therefore  be  dismissed with costs.

5.   On  14th  January 1986,  the Deputy Registrar of the High  Court wrote to the District  Officer  Iveti (South)  Division of Machakos district  citing the provisions of Order  XLV of the Civil  Procedure Rules  stating that the suit had  “been ordered by the court to be referred to” the District  Officer  “for arbitration by elders”  under his general supervision and direction and that each party was to appoint 2 elders and  the District  Officer  was  to act  as umpire with a casting  vote. The District Officer was required to forward the findings duly signed by the elders and countersigned by him to the court within 60 days.

6.  After hearing the parties, the unanimous  findings or award of the panel of elders made sometime  in 1986  were that:

(a) Dr. Ndeti“be and  is hereby  restrained from selling, whole or part  or otherwise parting with property L.R. 7149/ registered as I.R 1872/2 or evicting the plaintiff from  it until such  time that  P. N. Ndeti and  Brothers  a limited liability company  is dissolved and each afforded appropriate shares  of the assets forming the family company  some of which  though  registered under   individual  members  of  the  family have  been  jointly sold…”

(b)“the  house  on  this  property and  in which   the  plaintiff is residing is by all sufficient evidence on record the property of the plaintiff” and that

(c)“each party to bear its own costs incurred while attending the panel of elders arbitration.”

7.  That  award  was  then  filed   in  the  High   Court  and  judgment entered for Mutheke in accordance therewith.

8.   On 12th October  2006,  Dr. Ndeti presented to the High  Court the application  on  the  basis   of  which  the  impugned  ruling  was made.  In  his  affidavit sworn on 12th  October  2006  in  support of the application, Dr. Ndeti deposed  that after  the findings of the panel  of  elders  “the parties…retreated from  the  case  and  each went  his  way…”and that he  had  recently heard that  Mutheke had obtained a court decree, which he confirmed from the court, on the basis  of which the land  was declared family property and Mutheke given 3 acres of it; that the decree was set aside by the court on 28th  September  2006  following his  application; that the findings of the panel  of elders  and  the award is contrary to law and the Registration of Titles  Act.

9.  In his replying affidavit to that application sworn on 30th October 2006,  Mutheke deposed that both parties were satisfied with the elders  award and  that after  the award was read by the court on 18th  September  1986,  no  application was  made  to challenge  it within  the period of 30  days  set under order 45  rule 16  of the Civil  Procedure Rules;  that  there was  no  problem between  the party following the award but  that  Dr.  Ndeti had  recently “all over  a  sudden   renewed   his   threats  to  evict”him   from  the property; that following that threat he instructed his  advocates to extract the decree; that the decree was subsequently set aside on a technicality as judgment had  not been entered;  that there was un  explained inordinate delay in  making the application by Dr. Ndeti which was prejudicial to him  and the family in general as  key  witness had  since  died  and  that no  reason  had  been shown  why  time for making the application should be extended after 20 years.

10.  After hearing the parties, the learned judge  of the High  Court in the ruling that is the subject of the present appeal dismissed Dr. Ndeti’s  application. Dismissing the application, the learned judge of the High Court stated:

“I decline to grant the applicationas prayed based  on  technicalities that  Order 45   Rule  17   (1) Civil Procedure  Rule be complied with. I further note that 20  years  is on considerable  (sic)  time to have been taken to make  this application which I do notmade    (sic)  is   correct.  Application  dismissed.  Iaward costs to therespondent.”

11.  Dr.  Ndeti was  aggrieved  by  that  decision, hence  the  present appeal.

The appeal and submissions  by counsel

12.  The grounds of appeal as set out in  the memorandum of appeal are that  in  dismissing the application  the learned judge  of the High  Court erred in that she did not appreciate the nature of the application before her; that she did  not consider the application for enlargement of time; that she failed  to set aside the award for contravention of section  23 of the Registration of Titles  Act;  and that she failed  to evaluate the totality of the material before her. The  appellant  also  complains that  the  application  was wrongfully dismissed on technicalities; and  that the judge  erred in  finding that 20  years  delay  was  considerable when  it was properly explained.

13.   At the hearing of the application before us the parties were represented by learned counsel. Mr.  G. Gitonga  Murugara appeared for the appellant. Mr. Eric  Mutua appeared for the respondent.

14.    According to Mr. Murugara the High  Court ruling  was  rushed and not properly considered; the issues  raised in the appellant’s application before the High  Court were  not addressed; the appellants prayers  before the High  Court to enlarge time and set aside the award were refused on a technicality; the learned judge failed  to take into consideration that the award was made by an arbitral  tribunal  that  did   not  have  jurisdiction;   the  land   is registered under the Registration of Titles Act under which only the  High   Court  had  jurisdiction;   the  arbitral  tribunal contravened   section   23   of  the  Registration  of  Titles   Act   by defeating  title without good reason; that the tribunal  purported to vest the land  in  another entity which was not a party to the proceedings; that on  the strength of decisions  of this Court in Moya   Drift  Farm   Ltd  vs.  Theuri  [1973]   E  A  114; Nairobi

PermanentMarkets  Society  and  others   vs.  SalimaEnterprises and   other   [1995­1998]   1   EA232  titles  under section  23 the Registration of Titles  Act are indefeasible.

15.  Regarding the  delay  in  presenting the  application  before  the High  Court, Mr.  Murugara urged that both parties were guilty of delay as Mutheke did not take steps to enforce the judgment probably on account of appreciation that the judgment was not capable  of enforcement;  and  that the matter should be referred to the High Court for disposal.

16.   Opposing  the appeal,  Mr. Mutua  for the respondent submitted that the ruling of the High  Court is well reasoned and cannot be faulted; that  the learned judge  of the High  Court analyzed  the case  and  made  findings;  that  the judge  rightly  held  that the delay of 20 years by the appellant to make the application is inordinate delay.

17.    Regarding the complaint that the ruling  of the High  Court was rushed and  not reasoned, Mr. Mutua referred us to the decision of this Court in  Jamaica Nyaga  Njoroge  vs. Robert  Wainaina Kibe  Civil Appeal  No. 169  of 2001where  this Court upheld a decision    of   the  High   Court  notwithstanding  that  elaborate reasons were  not given  for the decision.  Mr Mutu  stated that this Court should uphold the decision  of the High  Court as the rationale of the decision  is discernible.

18.    Regarding the argument that the arbitral  tribunal  acted without jurisdiction,  Mr.   Mutua  drew  our  attention  to  the  fact   that counsel  represented  both parties when  the matter was referred to arbitration by the panel of elders and that it was as a result of consent  that the entire  dispute  was referred to arbitration;  that the question of  jurisdiction was  never  raised by  the appellant and it cannot be open at this stage to say tribunal acted without jurisdiction;  that there is nothing preventing parties from  going to arbitration  under Registration of Titles Act;  and  that to open that issue now prejudices the respondent. In that regard counsel referred us to the decision  of this Court in  Kihuni vs. Gakunga[1986]  KLR 572.

19.    Considering  the  view   taken  by  this  Court  in   John   Ongeri Mariaria and others  vs. Paul Matundura Civil Application No. NAI  301   of  2003where  the Court  considered delay  of  three months  delay   as  inordinate,  Mr.   Mutua  submitted that  the learned judges finding that the appellant was guilty of inordinate delay in presenting the application cannot be faulted.

20.    Mr. Mutua also referred us to the decision  of this Court in Hinga vs. Gathara [2009]  KLR 698and submitted that as a matter of public policy   arbitral  awards are final;  that  there has  to  be finality to litigation; that the present dispute is over 32 years old; that the original parties are all deceased and that if the suit was to commence  afresh  there would  be need for oral evidence which would  occasion  great injustice if the children of the deceased are subjected to the process.

21.    According to Mr. Mutua,  the award is  not illegal and  does not offend   section   23  of  Registration  of  Titles  Act  as  trust  over registered  land   can   be  implied.  In   that  regard,  Mr.   Mutua referred us  to numerous  cases including  the case of  Arumba  v Mbega  &  Another  [1988]   KLR121;  Mbothu&8   others   vs. Waitimu &  11  others  [1986]   KLR  17.    With that Mr.  Mutua urged us to dismiss the appeal with costs.

22.     In his  short reply Mr. Murugara submitted that the reference of the dispute was not by consent but a reference to arbitration by panel  of elders  under Act  14 of 1981;  that the arbitral  tribunal exceeded its powers by granting the reliefs that it did.

Determination

23.  We have  considered the record of  appeal,  the submissions by learned counsel  and the authorities cited.

24.  The reference of the dispute the subject of High  Court Civil  Case Number  430   of  1981   between   Mutheke  and   Dr.  Ndeti  to arbitration  by   the  panel    of   elders   was   made   under  the provisions  of  the then  Order XLV  that dealt with arbitration under order of a court. The letter from the Deputy Registrar of the  High   Court  dated  14th   January  1986   addressed   to  the District Officer Iveti (South) Division made reference to the order of the High  Court for reference of the matter “for  arbitration by elders under…[his]…general supervision and direction.”

25.      After hearing the parties, the panel  of elders  in  its award given 1986  determined that:

“1. It would be most unfair to have the plaintiff vacate the property in issue whose  common use was  granted  by the defendant under  family arrangements establishing P. N. Ndeti  and Brothers,  a limited liability company  in which  both  are  shareholders, and  the  company contributed 20,000. 00 towards its full acquisition despite  its registration in the  name  of the  defendant. On the other hand  allotment of the property by equal shares  to the  plaintiff is not  fair  unless  this  is along other properties some of which  are not in dispute now. P. N. Ndeti and  Brothers  as a limited liability company still remains  undissolved.  In this  case it is only  most fair  that  the  defendant  be  and  is hereby  restrained from selling, whole or part  or otherwise parting with property L.  R.  7149/9  registered as  L.R.  1872/2 or evicting the  plaintiff from  it until such  time that  P. N. Ndeti and  Brothers  a limited liability company  is dissolved and  each afforded appropriate shares  of the assets   forming  the  family  company   some  of  which though   registered  under   individual  members   of  the family have been jointly sold, see 2 above.

2. The house on this property and in which  the plaintiff is residing  is  by  all  sufficient  evidence on  record  the property of the plaintiff.

3.  Each   party    to   bear   its  own   costs   incurred  while attending the panel of elders arbitration.”

26.  We observe  that  the dispute  that was  referred to arbitration  as captured in  the pleadings in  High  Court Civil  Case Number 430 of  1981   was  between  Patrick  Mutheke  Ndeti  and  Dr. Kivuto Ndeti.  The interest of Patrick Mutheke Ndeti in L.R. 7149/9 was in  the portion of three acres  in  his  possession  upon  which his dwelling house  was  erected. In  the award, the panel  of  elders appear to have  gone beyond  the scope  of the dispute  between the  parties  by  pronouncing  itself  on  matters that  were   not referred to it  and  which were  therefore  not before  it.  That is however not a matter before us and we say no more.

27. Judgment was then entered in accordance with that award by the High  Court. The  appellant then moved  the High  Court to set aside  the arbitral  award and  consequent judgment.    The appellant’s application was under rule 5 of Order 49 of the Civil Procedure  Rules  (for enlargement  of time) and  rule 15  of Order 45 (to set aside the award).

28.  The exercise  of the powers  of the court under rule 5 of Order  49 and  rule 15 of Order  45 of the Civil  Procedure Rules involve  the exercise of discretion by the Court. That discretion must be exercised  judiciously. This  Court will interfere with the exercise of discretion by  a lower  court where  the court has  misdirected itself in  some  matter with the result  that it arrives at a wrong decision  or is manifest that  the decision  is  clearly wrong. The famous  words by Sir Charles Newbold  P. in Mbogo & Another V Shah 1968 EA93 at page 95 are worth repeating:

“…a   Court  of  Appeal  should  not   interfere with  the exercise  of  the  discretion  of  a  single Judge  unless it is satisfied that the Judge  in exercising  his  discretion has  misdirected himself in some matter and  as  a  result has  arrived at a wrong  decision,  or unless  it is manifest from  the case  as  a  whole  that the Judge  has  been clearly wrong  in the exercise  of  his  discretion and  that as a result there has been misjustice…….”

29.  It is  also  trite  that an  appellate  court should not substitute  the trial judge’s discretion with its own discretion and that in order to interfere it has to be shown  that the lower court was clearly wrong because of misdirection or for failing to take into account matters that  should have  been  taken  into  account or  for  taking  into account matters that should not have  been  taken into account. [See Matiba v Moi & 2 others,  2008 1 KLR 670].

30. Can it then be said in the circumstance of this case that that the learned  judge   of  the  High   Court  misdirected  herself in  some matter  with  the result  that  she  arrived at a wrong decision   or that  it  is manifest that  the learned judge’s  decision   is  clearly wrong? We do not think so.

31.  To start  with  there can  be  no  doubt that  the reference  of  the dispute to arbitration by the panel  of elders was made under the provisions of the then Order XLV  of the Civil  Procedure  Rules.

Under  rule 1 of that Order reference to arbitration could  only  be ordered, “Where  all parties…agree…” An  order for reference  to arbitration under those  provisions could  only  be made  with the consent  of the parties. There  is no power  under the then Order XLV of the Civil  Procedure Rules to compel  parties to arbitration. There  is no  suggestion that  any  party was  under disability  to agree to the reference to arbitration. Counsel  represented both parties.

32. The Magistrates’ Jurisdiction (Amendment) Act, 1981,  Act No. 14 of  1981(subsequently repealed  by  Act  18  of  1990)  provided for referral of cases of a civil  nature involving beneficial ownership of land,  division of or determination of boundaries, claims  to occupy or work land  and  trespass  to land  which would  have  otherwise been  under  the jurisdiction  of  magistrate’s courts  to panel  of elders.  The Magistrates’ Jurisdiction (Amendment)  Act,  1981  did not  affect  the  jurisdiction   of  the  High   Court.  We  do  not  see anything that  would   have  prevented  the  parties  in  this  case whose dispute was pending in  the High  Court from referring the same,  as they did,  to arbitration  by  a panel  of elders. In  other words, while  the dispute between the parties was resolved by arbitration by  a panel  of elders that was  constituted under the Magistrates’  Jurisdiction (Amendment)  Act,  1981,  Act  No. 14  of 198,  that panel  derived  its authority and  resolved the dispute in accordance with the mandate conferred by the parties pursuant to the consent  order of reference  to arbitration  under order XLV of the Civil  Procedure Rules.    To put  it  differently the panel  of elders  in  this case were not exercising jurisdiction  under Section 9A  of  the Magistrates Judicature  (Amended)  Act,  1981.     They were  exercising jurisdiction  conferred by  the parties under  an order made  under the provisions of XLV  of the Civil  Procedure Rules.

33.  We are not persuaded that the award of the tribunal  offends  the provisions of the Registration of Titles Act.  There is no provision in  that Act,  which prohibits parties with a dispute over title over property from  referring the same for determination by arbitration.

34. The learned judge  of the High  Court was also right in our view in taking  the  view  that she  did  that  the  appellant  was  guilty  of inordinate delay. She captured this in the Ruling when  she stated “that the respondent did nothing  until 20 years  later when  in 2006 the Deputy  Registrar on application entered  judgment in favour  of the applicants…”The delay was not satisfactorily explained before the High  Court or even before us. It is not enough  in our view for the appellant to say that the parties went separate ways and  did nothing after  the delivery  of the award. It was  for the appellant who  considered himself aggrieved  by  the award to proceed  with diligence  to seek the setting aside  of the award under rule  15  of the then Order XLV of the Civil  Procedure Rules.

35. We agree with the submission by counsel  for the respondent that the broad   principle of  finality of  arbitral  awards is  applicable under Order XLV of the Civil  Procedure Rules. That is discernible from the limited grounds for setting aside  an  award under rule 15  which  are  restricted  to  corruption   or  misconduct  of  the tribunal,  fraudulent concealment  of  matters,  and  willful deception.  Reviewing   the  grounds  upon   which the  appellant based his application before the High  Court, we are not satisfied, quite apart from the inordinate  delay  in  making the application, that the application met the threshold for setting aside an award.

36. We have said enough  to show that there is no merit in the appeal. Further the original cast in the drama is no more. To re­open the matter in those circumstances would  be oppressive to the descendants of the original cast.  Let the appellants comply  with the arbitral award and put to sleep this long outstanding matter.

37.  As  the dispute  involves   family  members, we  think each  party should bear their own costs in the High Court and in this Court.

Dated and delivered at Nairobi this  11th  day of  July,  2014.

P. N. WAKI

……………………….

JUDGE OF APPEAL

S. GATEMBU  KAIRU

…………………………

JUDGE OF APPEAL

J. MOHAMMED

……….……………..

JUDGE OF APPEAL

I certify that this is a true copy of the original.

DEPUTY  REGISTRAR

/ewm