[2012] KEHC 476 (KLR)
The court found that the dispute between the parties is governed by a contract containing an arbitration clause and that there is a similar dispute between the same parties already referred to arbitration in HCCC No. 235 of 2009. To avoid inconsistent decisions and promote judicial economy, the court held that this...
Source-derived case information.
- Citation
- [2012] KEHC 476 (KLR)
- Parties
- Plaintiff: Jackline W. Njeru t/a JavisaPa Enterprises; Defendant: Canuck Holdings Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 524 of 2009
- Procedural Posture
- Civil Suit / Ruling on Application for Stay of Execution and Referral to Arbitration
- Outcome
- Application allowed; matter referred to arbitration and proceedings stayed.
- Judges
- CM Njagi, GV Odunga
- Legal Topics
- Arbitration Agreements, Stay of Proceedings, Setting Aside Ex Parte Judgment, Contractual Disputes, Preliminary Decree, Injunctive Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jackline W. Njeru t/a JavisaPa Enterprises
Plaintiff
Canuck Holdings Limited
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Stay of Execution and Referral to Arbitration
Legal Issues
- 1 Whether the dispute should be referred to arbitration in accordance with the contract between the parties.
- 2 Whether the ex parte judgment and preliminary decree should be set aside due to lack of service of summons.
- 3 Whether a stay of execution and temporary injunction should be granted pending arbitration.
Ratio Decidendi
The court found that the dispute between the parties is governed by a contract containing an arbitration clause and that there is a similar dispute between the same parties already referred to arbitration in HCCC No. 235 of 2009. To avoid inconsistent decisions and promote judicial economy, the court held that this matter should also be referred to arbitration. The court further held that all further proceedings in this suit should be stayed pending the outcome of the arbitration process. The court exercised its discretion to make these orders in the interests of justice, efficiency, and to give effect to the parties' contractual agreement to arbitrate disputes.
Court Disposition
Application allowed; matter referred to arbitration and proceedings stayed.
Orders
- This matter is referred to arbitration in terms of the agreement between the parties.
- Any further proceedings in this matter are stayed pending the outcome of the arbitration process.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
High Court at Nairobi (Nairobi Law Courts)
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JACKLINE W. NJERU T/AJAVISAPA ENTERPRISES……………. PLAINTIFF
VERSUS
CANUCK HOLDINGS LIMITED………………………….............…. DEFENDANT
RULING
By this application, the Applicant prays for orders of stay of execution of the Preliminary decree issued herein on 9th December, 2009; a temporary injunction restraining the Respondents from selling the apartments constructed on the suit property pending the hearing and determination of this application; that the preliminary decree given on 7th December, 2009 and any consequential orders to be set aside; the ex parte judgment entered in default of defence on 9th December, 2009 be set aside; and that the dispute to be referred to arbitration.
The application is supported by the annexed affidavits of Joseph Makori, Advocate and Michael Scanlon, a director of the Applicant. It is based on the grounds that, inter alia, the Applicant was never served with Summons to Enter Appearance; the dispute between the parties is governed by a contract which provides for settlement of disputes by arbitration.
It is common ground that the dispute between the parties is governed by a contract which provides for settlement of disputes by arbitration. Under normal circumstances, the issue of arbitration ought to be raised in the proceedings as early as possible. In this instance, however, I note that there is a similar dispute between the same parties in HCCC No. 235 of 2009. In that case, the matter was referred to arbitration. The arbitration process is much quicker and cheaper. If this matter proceeds in court, there is the possibility of the court coming to a different conclusion from the arbitrator in HCCC No. 235 of 2009 and vice versa. I think it will be cost and time saving if the two matters can be referred to arbitration as they involve the same parties and raise similar issues.
For these reasons, I hereby make the following orders-
1. That this matter be and is hereby referred to arbitration in terms of the agreement between the parties
2. That any further proceedings in this matter be and are hereby stayed pending the outcome of the arbitration process.
3. Parties be at liberty to apply
4. Costs in the cause.
L. NJAGI
JUDGE
DATEDand DELIVEREDat NAIROBI this 7th day of November, 2012
ODUNGA
JUDGE