[2012] KEHC 816 (KLR)
The court found that the existence of an arbitration clause in the sale agreement between the applicants and the 1st respondent required that all disputes arising from the agreement be referred to arbitration. The issues raised by the respondents regarding the validity of the agreement, including non-registration,...
Source-derived case information.
- Citation
- [2012] KEHC 816 (KLR)
- Parties
- Plaintiff: Francis A. Djirackor; Plaintiff: Josephine Djirackor; Defendant: Speedway Investments Ltd; Defendant: Stanbic Bank Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 658 of 2010
- Procedural Posture
- Civil Case / Ruling on Interlocutory Application for Temporary Injunction Pending Arbitration
- Outcome
- Application allowed; matter referred to arbitration; temporary injunction granted.
- Judges
- CM Njagi, GV Odunga
- Legal Topics
- Interlocutory Injunctions, Arbitration Clauses, Sale of Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Francis A. Djirackor
Plaintiff
Josephine Djirackor
Plaintiff
Speedway Investments Ltd
Defendant
Stanbic Bank Ltd
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Application for Temporary Injunction Pending Arbitration
Legal Issues
- 1 Whether a temporary injunction should be granted to restrain the defendants from dealing with the suit premises pending arbitration.
- 2 Whether the dispute should be referred to arbitration in accordance with the sale agreement.
Ratio Decidendi
The court found that the existence of an arbitration clause in the sale agreement between the applicants and the 1st respondent required that all disputes arising from the agreement be referred to arbitration. The issues raised by the respondents regarding the validity of the agreement, including non-registration, did not override the clear intention of the parties to resolve disputes through arbitration. To ensure that the arbitration process was not rendered nugatory, the court held that it was just and proper to grant a temporary injunction restraining the defendants from dealing with the suit premises pending the outcome of the arbitration. The court thus referred the matter to...
Court Disposition
Application allowed; matter referred to arbitration; temporary injunction granted.
Orders
- This matter is referred to arbitration in terms of clause 16 of the agreement dated 30th March between the applicants and the 1st respondent.
- A temporary injunction is granted in terms of prayer 3 of the application by Chamber Summons dated 30th September, 2010.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
High Court at Nairobi (Nairobi Law Courts)
Civil Case 658 of 2010 [if !mso]> <style> v:* {behavior:url(#default#VML);} o:* {behavior:url(#default#VML);} w:* {behavior:url(#default#VML);} .shape {behavior:url(#default#VML);} </style> <![endif][if gte mso 9]><xml>
800x600
</xml><![endif][if gte mso 9]><xml>
Normal 0
false false false
EN-GB X-NONE X-NONE
MicrosoftInternetExplorer4
</xml><![endif][if gte mso 9]><![endif][if !mso]> <style> st1:*{behavior:url(#ieooui) } </style> <![endif][if gte mso 10]> <style> /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-style-parent:""; font-size:10. 0pt;"Times New Roman","serif";} </style> <![endif]
FRANCIS A. DJIRACKOR …………………..…….……..1ST PLAINTIFF
JOSEPHINE DJIRACKOR……………….………………2ND PLAINTIFF
VERSUS
SPEEDWAY INVESTMENTS LTD ..……..………...…1ST DEFENDANT
STANBIC BANK LTD……………….…..……….……2ND DEFENDANT
RULING
The Applicants herein seek an order for a temporary injunction restraining the Defendants from dealing with the suit premises being A.6 Block A on LR.330/667pending arbitration between the Applicants and the 1st Respondent.
The application is dated 30th September, 2010 and brought under Order XXX1X Rules 1, 2 and 9 of the Old Civil Procedure Rules, Section 3A of the Civil Procedure Act and Section 7 of the Arbitration Act. It is based principally on the ground that after paying the purchase price for the property, the Applicants realized that there was material non-disclosure by the 1st Respondent while entering into the sale agreement. In particular, the agreement drawn by the 1st Defendant’s lawyers did not disclose that the 2nd Respondent was mandatorily to consent to the agreement. Secondly, the 1st Respondent did not disclose that any deposits it was to receive were to be paid into an escrow account but instead received deposits in a different bank account.
The Respondents raise issues regarding the validity of the sale agreement on the ground of, inter alia, non registration. In my view, those issues do not cloud clause 16 of the agreement for sale between the Applicants and the 1st Respondent. It reads as follows-
“All disputes and questions whatsoever which shall arise between the parties hereto touching this agreement or relating to the rights and liabilities of either party hereto shall be referred to the decision of a single Arbitrator who shall be an advocate of not less than 20 years standing to be appointed by the chairman for the time being of the Law Society of Kenya in accordance with the provisions of the Arbitration Act of 1995 or any Act amending or replacing the same. The decision of such Arbitrator shall be final conclusive and binding on the parties.”
I think that it will be fair and proper to refer this matter to Arbitration in terms of the accord entered into between the parties. For that purpose, it is also prudent to grant an injunction pending the completion of that process. I accordingly make the following orders-
(a)This matter be and is hereby referred to arbitration in terms of clause 16 of the agreement dated 30th March, between the Applicants and the 1st Respondent.
(b)A temporary injunction is hereby granted in terms of prayer 3 of the application by Chamber Summons dated 30th September, 2010.
(c)Costs in the cause.
L. NJAGI
JUDGE
DATEDand DELIVERED in NAIROBI this 12th day of September, 2012.
ODUNGA
JUDGE