[2000] KEHC 137 (KLR)
The court held that the preliminary objection regarding the application being out of time was misconceived. By granting leave to file a fresh application, the court had implicitly extended the time for filing, making the issue of limitation irrelevant. The court further reasoned that strict compliance with the...
Source-derived case information.
- Citation
- [2000] KEHC 137 (KLR)
- Parties
- Applicant: Housing Finance Company Of Kenya Limited; Respondent: Gitutho Associates
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application 76 of ??
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection
- Outcome
- preliminary objection overruled; time for filing extended
- Legal Topics
- Arbitration Rules Compliance, Preliminary Objection, Extension of Time
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Housing Finance Company Of Kenya Limited
Applicant
Gitutho Associates
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection
Legal Issues
- 1 Whether non-compliance with the Arbitration Rules 1997 warrants striking out the application.
- 2 Whether the fresh application is out of time given the court's previous directions.
Ratio Decidendi
The court held that the preliminary objection regarding the application being out of time was misconceived. By granting leave to file a fresh application, the court had implicitly extended the time for filing, making the issue of limitation irrelevant. The court further reasoned that strict compliance with the Arbitration Rules 1997 was not warranted given their poor drafting, and that procedural technicalities should not override substantive justice. Accordingly, the objection was overruled and the time for bringing the new application was expressly extended to ensure compliance with the Arbitration Act.
Court Disposition
preliminary objection overruled; time for filing extended
Orders
- The preliminary objection is overruled with costs to the applicant.
- The time for bringing the new application is extended as necessary to comply with the Arbitration Act.
Full Case Text
Judgment text and source record
7 paragraphs
REPUBLIC OF KENYA In The Matter of: The Arbitration Act (1995) Housing Finance Company Of Kenya Limited v Gitutho Associates
High Court Of Kenya At Nairobi August 8, 2000
Milimani Commercial Courts
T Mbaluto, Judge
Misc Civil Application No 76 of 2000 (O S) August 8, 2000 T Mbaluto, Judge delivered the following ruling.
When this matter initially came up for hearing before me on May 18, 2000, learned counsel for the respondent Mr Kembi raised a preliminary objection in which he argued that the Arbitration Rules 1997 had not been complied with. Although I upheld the preliminary point, I did not consider the matter of sufficient gravity to justify the striking out of the application. However I granted leave to the applicant to bring another application in accordance with the rules. It was indicated to both Mr. Havelock for the applicant and Mr Kembi for the respondent the reason for taking that course which was that, in my view, the Arbitration Rules 1997 which were allegedly not complied with were so badly drafted that they should not be liberally used to knock of applications.
Mr Havelock, Advocate for the applicant has now brought a fresh application as directed by court but Mr Kembi still complains in another preliminary objection that the application is out of time. That objection is clearly misconceived because in allowing a fresh application to be brought, the court must be deemed to have decided that the fresh application would be within the original application. That way the issue of time which did not feature in the original application would not have been an issue in the new application. So as to avoid further doubt in this matter, it is ordered that the time for bringing the new application in court in terms of the order made on June 8, 2000 be extended for such a period as is necessary to bring the application in time within the meaning of the Arbitration Act. The objection is overruled with costs.