[2020] KEHC 9611 (KLR)
The court held that since the parties had expressly chosen arbitration as their dispute resolution mechanism, it was not the proper forum to determine the substantive issues arising from the revenue sharing agreement. The court found no evidence of a real threat of eviction by Africare, rendering the application for...
Source-derived case information.
- Citation
- [2020] KEHC 9611 (KLR)
- Parties
- Plaintiff: Dr Nisha Sapra t/a All Smiles Dental Practice; Defendant: Africare Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit E133 of 2019
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Applications
- Outcome
- applications dismissed with costs
- Judges
- MM Kasango
- Legal Topics
- Arbitration Clauses, Interim Measures, Injunctions, Revenue Sharing Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dr Nisha Sapra t/a All Smiles Dental Practice
Plaintiff
Africare Limited
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Applications
Legal Issues
- 1 Whether the court should grant interim measures of protection under Section 7 of the Arbitration Act pending arbitration.
- 2 Whether the applications for injunction and contempt are merited given the existence of an arbitration clause.
- 3 Whether the court is the proper forum to determine the parties' grievances under the revenue sharing agreement.
Ratio Decidendi
The court held that since the parties had expressly chosen arbitration as their dispute resolution mechanism, it was not the proper forum to determine the substantive issues arising from the revenue sharing agreement. The court found no evidence of a real threat of eviction by Africare, rendering the application for an injunction baseless. Furthermore, the application for contempt and to restrain Africare from installing another dentist was misconceived, as the interim injunction only restrained eviction and not the installation of another dentist. The failure by Dr Nisha to initiate the arbitration process as stipulated in the agreement further undermined her applications. Consequently,...
Court Disposition
applications dismissed with costs
Orders
- The chamber summons applications dated 17th May and 29th August 2019 are dismissed with costs.
- The case will be mentioned on 29th July, 2020 for further orders.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL AND ADMIRALTY DIVISION
CIVIL SUIT NO.E133 OF 2019
DR NISHA SAPRA T/A ALL
SMILES DENTAL PRACTICE..................PLAINTIFF/APPLICANT
- VERSUS -
AFRICARE LIMITED....................... DEFENDANT/RESPONDENT
RULING
1. There are two applications under consideration both filed by Dr. Nisha Sapra t/a All Smiles Dental Practice (thereafter Dr. Nisha). The respondent in both those applications is Africare Limited (hereafter Africare).
2. Africare has its main offices at Golden Plaza, Waiyaki Way. it is at that office it allowed Dr Nisha to run and manage a dental clinic. In that respect both parties entered into a revenue sharing agreement. One of the conditions under that agreement was that Dr. Nisha would ‘not collect directly any money in any form from the patient’ she attended to. The agreement also had an arbitration Clauses. By letter dated 9th May 2019 Dr. Nisha “Invoked” the arbitration clause and declared a dispute. In declaring that dispute Dr Nisha did not propose a name of an arbitrator for consideration by Africare, as envisaged under clause 8, the arbitration clause.
3. Dr. Nisha filed this action seeking interim measure of protection as provided under Section 7 of the Arbitration Act. By her plaint Dr. Nisha alleged that her claim, from Africare, for her share of revenue had not been honoured. She further stated that Africare intended to evict her from their premises.
4. Dr Nisha filed a Chamber Summons dated 17th May 2019. when the application came before court, ex parte, the court granted Dr. Nisha interim orders restraining Africare from evicting her.
5. It soon became clear that there was no threat to evict Dr. Nisha but rather that the disagreement related to revenue sharing. Each party has accused each other of wrong doing.
6. The second application a chamber summons dated 29th August 2019 is for injunction to restrain Africare from installing, in the premises, another dental clinic and an order holding Africare in contempt of court.
7. Parties have submitted on the two application as though the court is the forum they chose to determine their grievances. I need to remind the parties that the choice of their dispute resolution is arbitration, this court cannot therefore engage and determine which party has or has not honoured the revenue sharing agreement.
8. The plaintiff first came to this court in May 2019 and it is not clear why upto now the process of appointing an arbitrator, provided under clause 8 of the parties agreement, has not been followed. That failure to follow the process of appointment or arbitrator not having been followed, and the parties having pitched their tents in this court may be reason enough to deny Dr Nisha the prayers sought in her application. By now Dr Nisha should, with speed, have taken the dispute to where it belongs, before an arbitrator.
9. The chamber summon dated 17th May 2019 is in my view not merited. Africare has stated clearly, through its affidavits it has no intention to evict Dr Nisha. Why then would this court issue orders of injunction when there is no threat of eviction. Such an order would be in vain.
10. The second application of Dr Nisha, dated 29th August 2019 is misconceived. Dr Nisha premised that application on the basis that the ex parte interim injunction restrained Africare from installing another dentist on its premises. That belief of Dr Nisha is not supported by the interim injunction of the court. The interim injunction was directed at restraining Africare from evicting Dr Nisha and that is all.
11. In view of the above discussion there is no basis of granting the prayers sought and the chamber summons applications dated 17th May and 29th August 2019 are hereby dismissed with costs.
12. This case will be mentioned on 29th July, 2020 for further orders.
It is so ordered.
DATED, SIGNED and DELIVERED at NAIROBI this14thday of APRIL,2020.
MARY KASANGO
JUDGE
ORDER
In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by his Lordship, the Chief Justice on 15th March, 2020, this decision has been delivered to the parties online with their consent. They have waived compliance with Order 21 rule 1 of the Civil Procedure Ruleswhich requires that all judgments and rulings be pronounced in open court.
MARY KASANGO
JUDGE