[2021] KEHC 157 (KLR)
The court held that the application to record the settlement agreement as a consent order and enter judgment could not succeed because there was no substantive suit before the court. The proceedings were limited to seeking interim measures of protection pending arbitration, and such proceedings do not amount to a...
Source-derived case information.
- Citation
- [2021] KEHC 157 (KLR)
- Parties
- Applicant: Beatper Enterprises Limited; Respondent: Bapiny Montuel Wejang Wour
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 546 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Consent Judgment in Arbitration Related Proceedings
- Outcome
- application dismissed with costs to the respondent
- Judges
- F Tuiyott
- Legal Topics
- Interim Measures of Protection, Arbitration Agreements, Consent Judgments, Compromise of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Beatper Enterprises Limited
Applicant
Bapiny Montuel Wejang Wour
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Consent Judgment in Arbitration Related Proceedings
Legal Issues
- 1 Whether the court can record a settlement agreement as a consent order and enter judgment in the absence of a substantive suit.
- 2 Whether interim measures of protection proceedings under section 7(1) of the Arbitration Act constitute a suit for purposes of compromise under Order 25 Rule 5 of the Civil Procedure Rules.
Ratio Decidendi
The court held that the application to record the settlement agreement as a consent order and enter judgment could not succeed because there was no substantive suit before the court. The proceedings were limited to seeking interim measures of protection pending arbitration, and such proceedings do not amount to a suit upon which a compromise or consent judgment can be anchored. The invocation of Order 25 Rule 5 of the Civil Procedure Rules was therefore misplaced, as the rule requires the existence of a suit that has been adjusted by lawful agreement or compromise. Without a substantive suit, the court lacked jurisdiction to grant the orders sought.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application dated 21st January 2021 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
23 paragraphs
Beatper Enterprises Limited v Wour (Miscellaneous Civil Application 546 of 2016) [2021] KEHC 157 (KLR) (Commercial and Tax) (14 October 2021) (Ruling)
Neutral citation number: [2021] KEHC 157 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)
Miscellaneous Civil Application No. 546 of 2016
F Tuiyott, J
October 14, 2021
Between
Beatper Enterprises Limited
Plaintiff
and
Bapiny Montuel Wejang Wour
Defendant
Ruling
1. The purpose of these proceedings is revealed in ground (4) of the Notice of Motion dated 24th November 2016. It reads:-“THAT the Agreement between the parties has an Arbitration clause and the Applicant therefore seeks from this Honourable Court interim measures of protection under section 7(1) of the Act, pending the appointment of an Arbitrator.”
2. Section 7(1) of the Arbitration Act (the Act) reads:-“It is not incompatible with an arbitration agreement for a party to request from the High Court, before or during arbitral proceedings, an interim measure of protection and for the High Court to grant that measure.”
3. On how to trigger the request for an interim measure of protection, Rule 2 of the Arbitration Rules, 1997 reads:-“Applications under section 6 and 7 of the Act shall be made by summons in the suit.”
4. The Rule envisages the filing of a suit, something not done in the present matter and which must now come to haunt the Applicant’s application of 21st January 2021 which is for the following substantive order:-“(3)THAT The Settlement Agreement between the Applicant and the Respondent herein dated 3rd December, 2016 be and is hereby recorded as a Consent Order in this matter and Judgment be entered in accordance therewith.”
5. There is no substantive suit before Court and the order sought is not available in these proceedings. The Applicant invokes order 25 Rule 5 of the Civil Procedure Rules which reads:-“Compromise of a suit [Order 25, rule 5. ] 1. Where it is proved to the satisfaction of the court, and the court after hearing the parties directs, that a suit has been adjusted wholly or in part by any lawful agreement or compromise, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the court shall, on the application of any party, order that such agreement, compromise or satisfaction be recorded and enter judgment in accordance therewith.
2. The Court, on the application of any party, may make any further order necessary for the implementation and execution of the terms of the decree.”
6. Although a suit, under section 2 of the Civil Procedure Act, means all civil proceedings commenced in any manner prescribed, the proceedings before Court were limited to seeking of protective orders pending the reference of the dispute between the parties to Arbitration. There are no substantive proceedings upon which an order for compromise of the dispute between the parties can be anchored.
7. I need not consider the other objections to the application of 21st January 2021. It fails with costs to the Respondent.
Dated and Signed this 29th Day of September 2021F. TUIYOTTJUDGEDated and Delivered at Nairobi this 14th Day of October 2021A. MABEYA, FCI ArbJUDGEPRESENT: