[2004] KEHC 40 (KLR)

[2004] KEHC 40 (KLR)

The court found that although the arbitrator's decision on the architect's certificate was made without giving the applicant an opportunity to present its case, thereby breaching the rules of natural justice, the application to set aside the arbitral award was filed outside the statutory three-month period prescribed by section 35(3) of the Arbitration Act, 1995. The court held that the doctrine of res judicata did not apply because the previous application was withdrawn before hearing and determination. However, the statutory limitation period is mandatory and cannot be extended by consent of the parties or by the court. As a result, despite the merits of the applicant's arguments...

Citation
[2004] KEHC 40 (KLR)
Parties
Applicant: Deekay Contractors Ltd; Respondent: Construction & Contracting Ltd
Court
High Court
Court Station
High Court at Nairobi (Milimani Commercial Courts)
Jurisdiction
Kenya
Judgment Date
12 March 2004
Case Number
? 762 of 2003
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Arbitral Award
Outcome
application dismissed as time barred
Legal Topics
Arbitration Award Challenge, Natural Justice, Res Judicata, Limitation Periods, Liquidated Damages, Construction Contracts
Source Language
English
Civil Procedure Commercial and Corporate Alternative Dispute Resolution Arbitration Award Challenge Natural Justice Res Judicata Limitation Periods Liquidated Damages +1 more

Case Brief

Summary, issues, holding and outcome

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Parties

Deekay Contractors Ltd

Applicant

Construction & Contracting Ltd

Respondent

Procedural Posture

Miscellaneous Application / Ruling on Application to Set Aside Arbitral Award

Legal Issues

  1. 1 Whether the arbitrator's award was made without giving the applicant an opportunity to present its case on the issue of the architect's certificate.
  2. 2 Whether the rules of natural justice were breached by the arbitrator's decision.
  3. 3 Whether the application is barred by res judicata.

Ratio Decidendi

The court found that although the arbitrator's decision on the architect's certificate was made without giving the applicant an opportunity to present its case, thereby breaching the rules of natural justice, the application to set aside the arbitral award was filed outside the statutory three-month period prescribed by section 35(3) of the Arbitration Act, 1995. The court held that the doctrine of res judicata did not apply because the previous application was withdrawn before hearing and determination. However, the statutory limitation period is mandatory and cannot be extended by consent of the parties or by the court. As a result, despite the merits of the applicant's arguments...

Court Disposition

application dismissed as time barred

Orders

  • The application to set aside the arbitral award is dismissed as time barred under section 35(3) of the Arbitration Act, 1995.
  • Costs awarded to the respondent.