[2018] KEHC 1970 (KLR)
The court determined that, given the protracted nature of the proceedings and the limited issue remaining—namely, the taking of accounts on unpaid insurance commissions—the matter is suitable for expeditious resolution by arbitration. The court found it has both constitutional and statutory jurisdiction to refer the...
Source-derived case information.
- Citation
- [2018] KEHC 1970 (KLR)
- Parties
- Plaintiff: Jeremiah Ongeri Samba; Plaintiff: Benson Musa Mogaka t/a Merve Commercial Insurance Agencies; Defendant: Kenindia Insurance Co. Ltd
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 201 of 2009
- Procedural Posture
- Civil Suit / Ruling on Referral to Arbitration and Directions for Taking of Accounts
- Outcome
- Dispute referred to arbitration for taking of accounts; directions issued for appointment of arbitrator and conduct of proceedings.
- Judges
- DAS Majanja
- Legal Topics
- Insurance Commissions, Taking of Accounts, Alternative Dispute Resolution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jeremiah Ongeri Samba
Plaintiff
Benson Musa Mogaka t/a Merve Commercial Insurance Agencies
Plaintiff
Kenindia Insurance Co. Ltd
Defendant
Procedural Posture
Civil Suit / Ruling on Referral to Arbitration and Directions for Taking of Accounts
Legal Issues
- 1 Whether the dispute regarding unpaid insurance commissions should be referred to arbitration for taking of accounts.
- 2 Whether the court has jurisdiction to refer the matter to arbitration suo moto under the Constitution and Civil Procedure Act.
Ratio Decidendi
The court determined that, given the protracted nature of the proceedings and the limited issue remaining—namely, the taking of accounts on unpaid insurance commissions—the matter is suitable for expeditious resolution by arbitration. The court found it has both constitutional and statutory jurisdiction to refer the dispute to arbitration, even on its own motion, under Article 159(2)(c) of the Constitution, section 59C of the Civil Procedure Act, and Order 46 rule 20 of the Civil Procedure Rules. The court noted that the parties had previously consented to the taking of accounts and that the defendant had made a partial payment, leaving a specific balance in dispute. No counterclaim or...
Court Disposition
Dispute referred to arbitration for taking of accounts; directions issued for appointment of arbitrator and conduct of proceedings.
Orders
- The parties shall agree on a suitably qualified arbitrator within twenty one (21) days from the date hereof.
- In default, the Chairman of the Chartered Institute of Arbitrators, Kenya, shall appoint a suitably qualified arbitrator to resolve the dispute.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISII
CORAM: D.S MAJANJA J.
CIVIL SUIT NO. 201 OF 2009
BETWEEN
JEREMIAH ONGERI SAMBA...............................................1ST PLAINTIFF
BENSON MUSA MOGAKA t/a
MERVE COMMERCIAL INSURANCE AGENCIES........2ND PLAINTIFF
VERSUS
KENINDIA INSURANCE CO. LTD..........................................DEFENDANT
RULING
1. This is an old matter that was commenced in 2009 and has not seen the light of day given the various interlocutory proceedings that took place until I set aside the ex parte judgment on 11th October 2018. On 7th November 2018, I directed the parties to agree on terms of arbitration given the nature of the case. When the matter came up today for directions neither party had taken any step towards that end despite the duty of the parties and their advocates to assist the court in light of the overriding objective in section IA of the Civil Procedure Act (Chapter 21 of the Laws of Kenya). As I directed on 7th November 2018, I would make default orders in that regard and I propose to do so.
2. The only issue pending determination in this case, as I understand, is the taking of accounts on the plaintiffs’ claim for the sum of Kshs. 7,504,629/00 on account of unpaid commissions. In fact, in the course of the proceedings the parties did record a consent order dated 25th February 2010 as follows:
“Accounts be taken on commission earned by the plaintiff upto 31/12/2007 together with particulars of any payment made by the defendant to the plaintiff in settlement of the commissions earned to date.”
3. I would also add that in the course of the proceedings, the defendant paid the plaintiff Kshs. 3 million on account leaving a balance of Kshs. 4,508,629/-. The respondent has not raised any counterclaim or set off in its defence and any issues legal or otherwise can be settled in the course of taking accounts. I am therefore satisfied that taking of accounts is a matter that can be expeditiously resolved by reference to a suitably qualified arbitrator.
4. I am also satisfied that I possess the necessary jurisdiction to make such an order as it is this court’s constitutional imperative under Article 159(2)(c) of the Constitution to promote all forms of Alternative Dispute Resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms.
5. In civil proceedings, this imperative is underpinned by section 59C of the Civil Procedure Act which provides as follows:
59C(1) A suit may be referred to any other method of dispute resolution where the parties agree or the Court considers the case suitable for such referral.
(2) Any other method of alternative dispute resolution shall be governed by such procedure as the parties themselves agree to or as the Court may, in its discretion, order.
(3) Any settlement arising from a suit referred to any other alternative dispute resolution method by the Court or agreement of the parties shall be enforceable as a judgment of the Court.
(4) No appeal shall lie in respect of any judgment entered under this section. [Emphasis mine]
6. There is also Order 46 rule 20 of the Civil Procedure Rules which states as follows:
20. (1) Nothing under this order may be construed as precluding the court from adopting and implementing, of its own motion or at the request of the parties, any other appropriate means of dispute resolution (including mediation) for the attainment of the overriding objective envisaged under sections 1A and lB of the Act.
(2) The court may adopt an alternative dispute resolution and shall make such orders or issue such directions as may be necessary to facilitate such means of dispute resolution.
(3) Where a court mandated mediation adopted pursuant to this rule fails, the court shall forthwith set the matter down for hearing and determination in accordance with the Rules.[Emphasis mine].
7. All the provisions I have cited empower the court to act suo moto in an appropriate case. I have shown this is case that would benefit from arbitration as an expeditious mode of dispute resolution as it has been on our rolls for almost 10 years and the subject matter is appropriate for such course.
8. I therefore order as follows:
1. The parties shall agree on a suitably qualified arbitrator within twenty one (21) daysfrom the date hereof.
2. In default, the Chairman of the Chartered Institute of Arbitrators, Kenya, shall appoint a suitably qualified arbitrator to resolve the dispute.
3. The dispute shall be determined within ninety (90) days of such appointment and the award shall be filed in court.
4. Both parties shall share the costs of arbitration equally.
DATED and DELIVERED at KISII this28th day of November 2018.
D.S MAJANJA
JUDGE
Miss Gogi instructed by Samba and Company Advocates for the Plaintiff.
Mr. Wesonga instructed by Mose, Mose and Milimo and Company Advocates for the defendant.