[2000] KEHC 401 (KLR)
The court found that the order appointing M/S Nthiga & Associates was for the purpose of liquidation and reporting on the partnership, not for arbitration. There was no mention of arbitral proceedings or the application of Order XLV of the Civil Procedure Rules. The report produced by the liquidators was not an...
Source-derived case information.
- Citation
- [2000] KEHC 401 (KLR)
- Parties
- Applicant: Emebet Melaku Mwangi; Respondent: Hebest Menna Degefu
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 962 of ??
- Procedural Posture
- Civil Case / Ruling on Application for Enforcement of Purported Arbitral Award
- Outcome
- application dismissed with costs
- Legal Topics
- Arbitration Procedure, Liquidation of Partnership, Enforcement of Awards
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Emebet Melaku Mwangi
Applicant
Hebest Menna Degefu
Respondent
Procedural Posture
Civil Case / Ruling on Application for Enforcement of Purported Arbitral Award
Legal Issues
- 1 Whether the appointment of M/S Nthiga & Associates constituted an arbitral process under Order XLV of the Civil Procedure Rules.
- 2 Whether there was an arbitral award capable of enforcement under the Arbitration Act.
Ratio Decidendi
The court found that the order appointing M/S Nthiga & Associates was for the purpose of liquidation and reporting on the partnership, not for arbitration. There was no mention of arbitral proceedings or the application of Order XLV of the Civil Procedure Rules. The report produced by the liquidators was not an arbitral award and therefore could not be enforced as such under the Arbitration Act. Consequently, the application for enforcement of the purported award was without merit and was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application for enforcement of the purported arbitral award is dismissed with costs.
Full Case Text
Judgment text and source record
9 paragraphs
REPUBLIC OF KENYA
Emebet Melaku Mwangi v Hebest Menna Degefu
High Court of Kenya at Nairobi October 6, 2000 Milimani Commercial Courts T Mbaluto, Judge
Civil Case No 962 of 2000
October 6, 2000 T Mbaluto, Judge delivered the following ruling.
On June 30, 2000, Honourable Justice Hewett made an order in this matter by virtue of which M/S Nthiga & Associates of Kenya Bankers House, Nairobi were appointed as liquidators to investigate the assets and liabilities of the partnership (presumably existing between the parties hereto), value it and then dissolve it giving an option to either partner to buy the other parties share.
A further order was made standing the matter for mention on July 4, 2000 for the purposes of reporting progress. There was however no mention in the order of any arbitral proceedings and clearly Order XLV of the Civil Procedure Rules was not in any way contemplated by the order. As to that, the order is as clear as any can be. M/S Nthiga & Associates are thereby referred to as liquidators and not arbitrators and what they come up with is ‘a report’ and not an award.
It must therefore have been a bit of a surprise to the respondent to be served with an application for the enforcement of a purported award when there was no arbitration. The position was compounded by an attempt to reduce the time within which an application to enforce the award could be made but having regard to the view I take of the matter, nothing arises from that futile attempt. In any case, as observed above, there was no arbitral award in this matter and consequently Order XLV rule 16 of the Arbitration Act has no application.
For all the above reasons, I find that there is no merit in this application and it must therefore be dismissed with costs. It is so ordered.