[2024] KEHC 3253 (KLR)
The court found that the application was not brought in compliance with Rule 2 of the Arbitration Rules, 1997, which mandates that applications under sections 6 and 7 of the Arbitration Act must be made by summons in the suit. The applicant failed to anchor the application on a suit, and this procedural defect is...
Source-derived case information.
- Citation
- [2024] KEHC 3253 (KLR)
- Parties
- Applicant: Robert Githaiga; Respondent: Mogo Auto Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application E052 of 2024
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection and Motion for Interim Relief
- Outcome
- application struck out for being fatally defective; costs to the respondent
- Judges
- FG Mugambi
- Legal Topics
- Arbitration Procedure, Jurisdiction of Court, Preliminary Objection, Interim Injunctions
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Robert Githaiga
Applicant
Mogo Auto Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection and Motion for Interim Relief
Legal Issues
- 1 Whether the application is fatally defective for not being anchored on a suit as required by Rule 2 of the Arbitration Rules, 1997.
- 2 Whether the court has jurisdiction to entertain the application in the absence of an enforceable arbitration agreement.
Ratio Decidendi
The court found that the application was not brought in compliance with Rule 2 of the Arbitration Rules, 1997, which mandates that applications under sections 6 and 7 of the Arbitration Act must be made by summons in the suit. The applicant failed to anchor the application on a suit, and this procedural defect is not a mere technicality but goes to the root of the court's jurisdiction. The court relied on established case law confirming the mandatory nature of this requirement. Consequently, the preliminary objection was upheld and the application was struck out as fatally defective.
Court Disposition
application struck out for being fatally defective; costs to the respondent
Orders
- The application dated 22nd January 2024 is struck out.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
24 paragraphs
Githaiga v Mogo Auto Limited (Miscellaneous Application E052 of 2024) [2024] KEHC 3253 (KLR) (Commercial and Tax) (20 March 2024) (Ruling)
Neutral citation: [2024] KEHC 3253 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Commercial Courts)
Commercial and Tax
Miscellaneous Application E052 of 2024
FG Mugambi, J
March 20, 2024
Between
Robert Githaiga
Applicant
and
Mogo Auto Limited
Respondent
Ruling
Background 1. This ruling determines the Motion application dated 22nd January 2024 brought under section 7(1) of the Arbitration Act, sections 1A, 1B, 3A, 63 (c) and (e) of the Civil Procedure Act, Chapter 21 Laws of Kenya, Order 32 Rule 1(1) and 5(1), Order 40 rule 1(a), 2 and 10 and Order 51 Rule 1of the Civil Procedure Rules. The application seeks temporary injunctive relief against the respondent from interfering with vehicle registration KCQ 789L, pending the appointment of an arbitrator.
2. The application is supported by the affidavit of Robert Githaiga, the applicant herein, dated 22nd January 2024. The application is opposed by way of a replying affidavit sworn by Erick Omondi, the Debt Collection Legal Officer of the respondent, on 22nd February 2024. Alongside this the respondent also filed a Notice of Preliminary Objection dated 20th February 2024.
3. The Preliminary Objection is premised on the grounds that Motion Application dated 22nd January 2024 is fatally and incurably defective in law as the application is not anchored on a suit as per the mandatory requirements of Rule 2 of the Arbitration Rules, 1997. The second ground is that this Honourable Court has no jurisdiction to entertain the application dated 22nd January 2024 as there is no enforceable arbitration agreement between the parties as contemplated under Section 4 of the Arbitration Act, 1995.
4. The application was canvassed by way of written submissions. Both parties filed their respective submissions, with the applicant’s submissions dated 13th March 2024 and the respondent’s submissions dated 13th March, 2024.
5. This Court notes that the applicant has not in any way responded to the first issue raised by the respondent, on the averment that the application breaches rule 2 of the Arbitration Act, 1995. For the avoidance of doubt, the said rule 2 provides as follows:“Applications under sections 6 and 7 of the Act shall be made by summons in the suit.”
6. The essence of rule 2 is that an application like the one before this Court ought to have been brought by way of a Chamber Summons and not a Notice of Motion. While such transgression may be excusable, the Courts have held time and again that the requirements of rule 2 requiring that an application be premised on a suit are couched in mandatory terms. (See Scope Telematics International Sales Limited V Stoic Company Limited & Another, [2017] eKLR as well as Machiri Limited V Sogea-Satom Kenya Branch, [2020] eKLR.
7. The Court of Appeal further noted in Scope Telematics [supra] that this error cannot be wished away, since the manner of initiating a suit cannot be termed as a mere case of technicality wherelse it is the basis of jurisdiction.
Determination 8. For the foregoing reasons this Court upholds the preliminary objection. The application dated 22nd January 2024 is struck out for being fatally defective, with costs to the respondent.
DATED, SIGNED AND DELIVERED IN NAIROBI THIS 20 TH DAY OF MARCH 2024. F. MUGAMBIJUDGE