[2008] KEHC 3699 (KLR)

[2008] KEHC 3699 (KLR)

The court held that Rule 2 of the Arbitration Rules, promulgated under the Arbitration Act, expressly provides that applications under Section 7 must be made by summons in a suit. The applicant's use of Originating Summons was contrary to this mandatory procedure. The court rejected arguments that the Act was silent...

Source-derived case information.

Citation
[2008] KEHC 3699 (KLR)
Parties
Plaintiff: Aisha C. Ryu; Defendant: Viri Goswami
Court
High Court
Court Station
High Court at Nairobi (Milimani Law Courts)
Jurisdiction
Kenya
Judgment Date
5 February 2008
Case Number
Civil Case 2269 of 2007
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Outcome
preliminary objection upheld; application dismissed
Judges
KH Rawal
Legal Topics
Arbitration Interim Measures, Originating Summons Procedure, Preliminary Objection, Application of Arbitration Rules
Source Language
english
Civil Procedure Alternative Dispute Resolution Arbitration Interim Measures Originating Summons Procedure Preliminary Objection Application of Arbitration Rules

Source-derived case record

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 2 Authorities cited 3 Party arguments 2
Sign in to unlock

Parties

Aisha C. Ryu

Plaintiff

Viri Goswami

Defendant

Procedural Posture

Civil Case / Ruling on Preliminary Objection

Legal Issues

  1. 1 Whether the application for interim measures under Section 7(1) of the Arbitration Act can be brought by way of Originating Summons.
  2. 2 Whether the procedure prescribed by the Arbitration Rules must be strictly followed for applications under Section 7(1) of the Arbitration Act.
  3. 3 Whether the failure to comply with the prescribed procedure renders the application incompetent and a nullity.

Ratio Decidendi

The court held that Rule 2 of the Arbitration Rules, promulgated under the Arbitration Act, expressly provides that applications under Section 7 must be made by summons in a suit. The applicant's use of Originating Summons was contrary to this mandatory procedure. The court rejected arguments that the Act was silent on procedure or that English procedural practice should be followed, emphasizing that Kenyan law has stipulated the applicable procedure. The failure to comply with the prescribed procedure was a fundamental defect, rendering the application incompetent and incurably defective. Consequently, the Originating Summons was dismissed for procedural impropriety.

Court Disposition

preliminary objection upheld; application dismissed

Orders

  • The Originating Summons dated 5th November, 2007 is dismissed as incompetent and incurably defective.
  • Each party shall bear its own costs.