[2009] KEHC 346 (KLR)

[2009] KEHC 346 (KLR)

The court found that although the dealer agreement between the parties contained an arbitration clause requiring disputes to be resolved by arbitration, the defendant, by filing grounds of opposition and a replying affidavit in response to the plaintiff's application for an injunction, had taken steps in the...

Source-derived case information.

Citation
[2009] KEHC 346 (KLR)
Parties
Plaintiff: Intermiddle Enterprises Ltd; Defendant: Safaricom Ltd
Court
High Court
Court Station
High Court at Nairobi (Milimani Commercial Courts)
Jurisdiction
Kenya
Judgment Date
27 November 2009
Case Number
Civil Case 656 of 2009
Procedural Posture
Civil Case / Ruling on Application for Stay of Proceedings Pending Arbitration
Outcome
application dismissed with costs
Judges
LK Kimaru
Legal Topics
Arbitration Clauses, Stay of Proceedings, Dealer Agreements, Jurisdiction of Court, Steps in Proceedings, Contractual Dispute Resolution
Source Language
english
Commercial and Corporate Civil Procedure Alternative Dispute Resolution Arbitration Clauses Stay of Proceedings Dealer Agreements Jurisdiction of Court Steps in Proceedings +1 more

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Summary, issues, holding and outcome

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Parties

Intermiddle Enterprises Ltd

Plaintiff

Safaricom Ltd

Defendant

Procedural Posture

Civil Case / Ruling on Application for Stay of Proceedings Pending Arbitration

Legal Issues

  1. 1 Whether the defendant is entitled to a stay of proceedings pending reference of the dispute to arbitration under the Arbitration Act 1995.
  2. 2 Whether the defendant, by filing pleadings in opposition to the plaintiff's application for injunction, took steps in the proceedings that disentitle it to a stay.
  3. 3 Whether the court retains jurisdiction to hear the dispute despite the existence of an arbitration clause.

Ratio Decidendi

The court found that although the dealer agreement between the parties contained an arbitration clause requiring disputes to be resolved by arbitration, the defendant, by filing grounds of opposition and a replying affidavit in response to the plaintiff's application for an injunction, had taken steps in the proceedings. Under Section 6(1) of the Arbitration Act 1995 and the principles set out in Niazsons (K) Ltd vs China Road & Bridge Corporation, a party seeking a stay of proceedings must not have taken any steps in the proceedings other than those permitted. By taking such steps, the defendant elected to have the dispute determined by the court, thereby disentitling itself to a stay of...

Court Disposition

application dismissed with costs

Orders

  • The defendant's application dated 22nd September 2009 for stay of proceedings pending arbitration is dismissed with costs.