[2007] KEHC 2174 (KLR)

[2007] KEHC 2174 (KLR)

The court held that the first ground of the preliminary objection, concerning jurisdiction due to the pendency of the earlier application, was not well founded because the plaintiffs' current application expressly sought leave to withdraw the earlier application. However, the second ground was upheld: the plaintiffs...

Source-derived case information.

Citation
[2007] KEHC 2174 (KLR)
Parties
Plaintiff: David Chabeda; Plaintiff: Truphena Chabeda; Defendant: Francis Inganji
Court
High Court
Court Station
High Court at Nairobi (Milimani Commercial Courts)
Jurisdiction
Kenya
Judgment Date
17 August 2007
Case Number
Civil Case 597 of 2002
Procedural Posture
Civil Case / Ruling on Preliminary Objection to Chamber Summons Seeking Enforcement of Arbitral Award
Outcome
Preliminary objection partly allowed and partly dismissed.
Legal Topics
Arbitral Award Enforcement, Preliminary Objection, Civil Procedure Rules, Arbitration Act Section 36
Source Language
english
Civil Procedure Alternative Dispute Resolution Arbitral Award Enforcement Preliminary Objection Civil Procedure Rules Arbitration Act Section 36

Source-derived case record

Summary, issues, holding and outcome

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Parties

David Chabeda

Plaintiff

Truphena Chabeda

Plaintiff

Francis Inganji

Defendant

Procedural Posture

Civil Case / Ruling on Preliminary Objection to Chamber Summons Seeking Enforcement of Arbitral Award

Legal Issues

  1. 1 Whether the court has jurisdiction to entertain the plaintiffs' application dated 20th September, 2004 while an earlier application dated 18th March, 2004 has not been determined or withdrawn.
  2. 2 Whether the plaintiffs' application to enforce the arbitral award is incompetent for failure to comply with section 36 of the Arbitration Act, 1995.

Ratio Decidendi

The court held that the first ground of the preliminary objection, concerning jurisdiction due to the pendency of the earlier application, was not well founded because the plaintiffs' current application expressly sought leave to withdraw the earlier application. However, the second ground was upheld: the plaintiffs failed to comply with the mandatory requirement under section 36 of the Arbitration Act, 1995 to furnish a duly authenticated original arbitral award or a certified copy. This statutory requirement is couched in mandatory terms and cannot be circumvented by the court's inherent powers. As a result, the prayer seeking enforcement of the arbitral award was struck out as...

Court Disposition

Preliminary objection partly allowed and partly dismissed.

Orders

  • Prayer No. 2 of the application (enforcement of arbitral award) is struck out as incompetent.
  • Prayer No. 1 (withdrawal of earlier application) shall proceed to hearing.