[2018] KEHC 3013 (KLR)
The court held that it lacked jurisdiction to appoint an arbitrator because the parties' Service Level Agreement (specifically clause 12) provided a clear mechanism for such appointment, vesting the power in the Chairman of the Kenyan Branch of the Chartered Institute of Arbitrators upon application by either party....
Source-derived case information.
- Citation
- [2018] KEHC 3013 (KLR)
- Parties
- Applicant: National Industrial Credit Bank Kenya PLC; Respondent: George Arunga Sino t/a Maywood Auctioneers
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 44 of 2017
- Procedural Posture
- Notice of Motion / Ruling on Preliminary Objection
- Outcome
- application struck out with costs
- Judges
- TW Cherere
- Legal Topics
- Arbitration Clause Enforcement, Functus Officio, Contractual Dispute Resolution, Auctioneer Costs
- 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
National Industrial Credit Bank Kenya PLC
Applicant
George Arunga Sino t/a Maywood Auctioneers
Respondent
Procedural Posture
Notice of Motion / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the court has jurisdiction to appoint an arbitrator under the parties' Service Level Agreement.
- 2 Whether the court is functus officio after referring the dispute to arbitration.
- 3 Whether the application for appointment of an arbitrator or taxation of auctioneer's bills is legally tenable.
Ratio Decidendi
The court held that it lacked jurisdiction to appoint an arbitrator because the parties' Service Level Agreement (specifically clause 12) provided a clear mechanism for such appointment, vesting the power in the Chairman of the Kenyan Branch of the Chartered Institute of Arbitrators upon application by either party. The court further found that it was functus officio, having already dismissed the appeal and referred the dispute to arbitration in its earlier order. Therefore, the application seeking the court's directions on appointment of an arbitrator or, alternatively, taxation of the auctioneer's bills was misconceived and legally untenable. The Preliminary Objection was upheld, and...
Court Disposition
application struck out with costs
Orders
- The Preliminary Objection is upheld.
- The Notice of Motion dated 4.7.18 is struck out with costs to the appellant/respondent.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
(CORAM: CHERERE-J)
HIGH COURT CIVIL CASE NO. 44 OF 2017
GEORGE ARUNGA SINO T/A MAYWOOD ACTIONEERS.....RESPONDENT
VERSUS
NATIONAL INDUSTRIAL CREDIT BANK KENYA PLC............APPLICANT
RULING
1. By a notice of motion dated 4. 7.18, the applicant prays for ordersTHAT: -
1. The court does give directions on appointment of an arbitrator pursuant to the Ruling delivered on 12. 4.18 or in the alternative, if the respondent is not interested in the arbitration process, the Honourable Court does order the Auctioneers bills be taxed by the Deputy Registrar of this Honourable Court
2. Costs be provided for
2. The application is based on the grounds among others that the court did order on 12. 4.18 that the auctioneer’s costs be subjected to arbitration but the respondent has shown no interest in the arbitration process.
3. On 24. 7.18, the appellant/respondent filed a Preliminary Objection dated 20. 7.18 where it contends that the application herein is misconceived and legally untenable and that the court is functus officio having determined the appeal between the parties.
4. The court record shows that by an order dated 12. 4.18; the respondent’s appeal was dismissed and the court directed that the dispute between the parties be referred to arbitration in line with clause 12 of their Service Level Agreement.
5. Clause 12 of their Service Level Agreement vests the power to appoint an Arbitrator on the parties, failure to which the appointment is done by the Chairman for the time being of the Kenyan Branch of the Chartered Institute of Arbitrators (of the United Kingdom), on the application of either party.
6. Clause 12 of their Service Level Agreement unequivocally outs this court’s jurisdiction to appoint an arbitrator to arbitrate on the dispute between the parties herein. It is trite that court of law cannot rewrite a contract between the parties. The parties are bound by the terms of their contract. (See Eslon Plastics Of (K) Limited v National Water Conservation and Pipeline Corporation [2014] eKLR;GatobuM’IbuutuKaratho v Christopher MuriithiKubai [2014] eKLRand National Bank of Kenya Ltd V Pipe Plastic Samkolit (K) Ltd & Another (2002) EA 503).
7. I agree with the appellant/respondent thatthe application herein is misconceived and legally untenable and that the court is functus officio having rendered its decision on the issue of arbitration.
8. Consequently, the Preliminary Objection is upheld and the Notice of Motion dated 4. 7.18 is struck out with costs to the appellant/respondent.
DATED AND DELIVERED IN KISUMU THIS18thDAY OFOctober,2018
T.W. CHERERE
JUDGE
Delivered in open court in the presence of-
Court Assistant - Mr Arua
For the Applicant - Ms Barasa/Mr Abande
For the Appellant/Respondent - Kiarie/Mr Onyikwa