[2005] KEHC 2257 (KLR)
The court found that the respondent had failed to participate in the arbitration proceedings and had not applied to set aside the arbitral award within the statutory three-month period as required by Section 35 of the Arbitration Act 1995. The respondent's request for adjournment to file a replying affidavit and to...
Source-derived case information.
- Citation
- [2005] KEHC 2257 (KLR)
- Parties
- Applicant: Narottam Mulji Khatan; Respondent: Kenya Orient Insurance Co. Ltd.
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 818 of 2004
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Enforce Arbitral Award
- Outcome
- application granted
- Legal Topics
- Arbitral Award Enforcement, Arbitration Act Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Narottam Mulji Khatan
Applicant
Kenya Orient Insurance Co. Ltd.
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Enforce Arbitral Award
Legal Issues
- 1 Whether the arbitral award filed on 11th November, 2004 should be enforced as a judgment of the court.
- 2 Whether the respondent's request for adjournment to file a replying affidavit and to apply to set aside the award was valid given statutory time limits.
Ratio Decidendi
The court found that the respondent had failed to participate in the arbitration proceedings and had not applied to set aside the arbitral award within the statutory three-month period as required by Section 35 of the Arbitration Act 1995. The respondent's request for adjournment to file a replying affidavit and to seek to set aside the award was therefore without merit. The court held that, since the award had not been set aside and the application for enforcement was properly before it, the applicant was entitled to have the award enforced as a judgment of the court under Section 36 of the Arbitration Act 1995. The application was granted as prayed.
Court Disposition
application granted
Orders
- Leave is granted to enforce the arbitral award of Mr. K. K. Pandya filed on 11th November, 2004 as a judgment of the court.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA Misc Cause 818 of 2004
IN THE MATTER OF: THE ARBITRATION ACT 1995 LAWS OF KENYA AND IN THE MATTER OF AN ARBITRATION
BETWEEN
NAROTTAM MULJI KHATAN ……….…………………….…..…… CLAIMANT AND KENYA ORIENT INSURANCE CO. LTD. ………………………. RESPONDENT
R U L I N G
This is an application under Section 36 of the Arbitration Act 1995 and Rule 9 of the Arbitration Rules 1997 seeking leave of this court to enforce the Arbitral award of Mr. K. K. Pandya filed herein on the 11th November, 2004 as a judgement of the court.
The record shows that the Respondents refused to take part in the appointment of the arbitrator under the provisions of the Arbitration Agreement between the parties forcing the applicant to do it alone. The Respondents also refused to take part in the arbitral proceedings. Not even the service upon them of the arbitral award itself or of the notice of filing it bothered them.
However upon service on them of this application and when it came up for hearing they sought through their advocate an adjournment to enable them file a replying affidavit in opposition and to give them time to apply to set aside the award. Given the provisions of Section 35 of the Arbitration Act requiring applications to set aside arbitral awards to be made within three months of receipt of the arbitral award, I found no good reason to adjourn the hearing of this application which in any case is supposed to be made ex-parte. I refused the application for adjournment and allowed counsel for the applicant to argue it ex-parte.
Having perused the application with the supporting affidavit and the annextures thereto and having considered counsel’s submissions and the arbitral award having not been set aside I am satisfied that the application is in order and I, grant it as prayed.
DATED and delivered this 23rd day of May, 2005
D.K. MARAGA
JUDGE