MUTUA VUVI,MUTUNE MUSYOKI & KALEE MUTUA vs TITUS NGUI MUTISYA [1998] KECA 271 (KLR)

REPUBLIC OF KENYA

IN THE COURT OF APPEAL

AT NAIROBI

(CORAM: AKIWUMI, SHAH & LAKHA, JJ.A.)

CIVIL APPEAL NO. 129 OF 1997

BETWEEN

1. MUTUA VUVI

2. MUTUNE MUSYOKI

3. KALEE MUTUA ......................................... APPELLANTS

AND

TITUS NGUI MUTISYA .................................... RESPONDENT

(Appeal from the Judgment of the High Court of Kenya at Machakos (Justice Torgbor) dated the 9th day of November, 1990 in H.C.C.C. NO. 7 OF 1987) **********

JUDGMENT OF THE COURT

The appeal is against the decision of the learned Judge (Torgbor J) of the superior court where he refused to review his confirmation of the award made by the arbitrators on a matter which had been ordered by the learned judge to be arbitrated upon. In doing so, the learned judge acted on his own without the parties having first agreed to the matter being referred to arbitration which are the mandatory rules provided for this purpose by section 59 of the Civil Procedure Act and O 45 r 1 of the Civil Procedure Rules. In the result, the order of the learned judge referring the matter before him to arbitration was a nullity and any acts performed on the basis of this order including those of the learned judge, are a nullity. The decision of the learned judge appeal against is likewise a nullity. We must therefore allow this appeal with costs and order that the position as ordered by Platt J as he then was, shall be maintained.

Dated and delivered at Nairobi this 29th day of May, 1998.

A. M. AKIWUMI

JUDGE OF APPEAL

A. B. SHAH

JUDGE OF APPEAL

A. A. LAKHA

JUDGE OF APPEALI certify that this is a true copy of the original. DEPUTY REGISTRAR.