[2014] KEELC 477 (KLR)
The court found that the agreement for sale between the parties contains a binding arbitration clause which has not been invoked. All parties agreed that arbitration was the intended dispute resolution mechanism. The court held that it is bound to give effect to the parties' intention as expressed in the contract...
Source-derived case information.
- Citation
- [2014] KEELC 477 (KLR)
- Parties
- Plaintiff: Exquisite Services Limited; Defendant: Mwashime Alii Mwakuzimu; Defendant: Salimu Saidi Rachitu; Defendant: Wycliffe Gagai Madaga; Defendant: Okanga & Company Advocates; Defendant: Mogaka, Omwenga & Mabeya & Co Advocates
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 106 of 2013
- Procedural Posture
- Environment and Land Case / Ruling on Stay of Proceedings Pending Arbitration
- Outcome
- Proceedings stayed pending arbitration.
- Judges
- SN Mukunya
- Legal Topics
- Arbitration Clause, Stay of Proceedings, Agreement for Sale, Injunctive Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Exquisite Services Limited
Plaintiff
Mwashime Alii Mwakuzimu
Defendant
Salimu Saidi Rachitu
Defendant
Wycliffe Gagai Madaga
Defendant
Okanga & Company Advocates
Defendant
Mogaka, Omwenga & Mabeya & Co Advocates
Defendant
Procedural Posture
Environment and Land Case / Ruling on Stay of Proceedings Pending Arbitration
Legal Issues
- 1 Whether the proceedings should be stayed pending arbitration as per the agreement for sale.
- 2 Whether the parties are bound by the arbitration clause in the agreement for sale.
- 3 Whether the status quo should be maintained pending arbitration.
Ratio Decidendi
The court found that the agreement for sale between the parties contains a binding arbitration clause which has not been invoked. All parties agreed that arbitration was the intended dispute resolution mechanism. The court held that it is bound to give effect to the parties' intention as expressed in the contract and that the proceedings should be stayed to allow arbitration to take place. The court further ordered that the status quo in respect of the property (Kwale/Diani Beach Block 108) be maintained until the arbitration is concluded or further orders are made. This approach upholds the principle of party autonomy in contractual dispute resolution and ensures that the contractual...
Court Disposition
Proceedings stayed pending arbitration.
Orders
- All proceedings herein are stayed pending arbitration as per Clause 18 of the agreement for sale.
- The status quo shall be maintained in respect of Kwale/Diani Beach Block 108 until the arbitration is conducted or until further orders of the Court.
Full Case Text
Judgment text and source record
25 paragraphs
COPY
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
ENVIRONMENT AND LAND CASE NO. 106 OF 2013
EXQUISITE SERVICES LIMITED...................................................... PLAINTIFF
- V E R S U S -
1. MWASHIME ALII MWAKUZIMU
2. SALIMU SAIDI RACHITU
3. WYCLIFFE GAGAI MADAGA
4. OKANGA & COMPANY ADVOCATES
5. MOGAKA, OMWENGA & MABEYA & CO ADVOCATES ........ DEFENDANTS
RULING
[1] There are four applications in this case. The first application is dated 22nd May, 2013 praying for injunctive orders against the 1st to 3rd defendants. Temporary orders were granted in this application but the application itself is still pending for hearing. The second application is dated 10th June 2013 by the 4th defendant praying for stay of the proceedings and praying that this case be referred to arbitration pursuant to the agreement for sale of 1st October, 2011. The third application is filed on 2nd of July by the 5th defendant asking that the suit against Mogaka Omwenga and Mabeya be struck out and finally, the 4th application is dated 19th July, 2013 by the plaintiff for leave to amend its plaint dated 23rd May, 2013.
None of the above application has been determined. when this matter came for hearing it was pointed out to the court, that the agreement for sale dated 21st October 2011 between the parties has an arbitration clause which clearly spells out how any dispute arising out of that agreement will be settled. Parties all agreed that they have not explored that option. Arbitration is what the parties intended in their agreement. It is binding on them. Mr. Oloo Learned Counsel for the 4th defendant prayed to the Court to stay all these proceedings until the arbitration option is exhausted. He was supported by Miss. Ochieng for the plaintiff and Mr.Karega Learned Counsel for the 1st, 2nd and 3rd respondents.
[2] The Court is convinced that this is the way to go.
I will therefore order that all the proceedings herein be stayed pending arbitration as per Clause 18 of the agreement for sale herein. The status quo shall be maintained in respect of Kwale/Diani Beach Block 108 until the arbitration aforesaid is conducted or until further orders of this Court.
Dated and delivered in open Court at Mombasa this 14th day of February, 2014.
S.N. MUKUNYA
JUDGE
14. 2.2014
In the presence of:
G.T.S. Were & Co. for 1st and 2nd defendants
Hamza holding brief for Oloo Advocate for 4th defendant
Nyambena advocate for 4th defendant