[2012] KEHC 5536 (KLR)

[2012] KEHC 5536 (KLR)

The court held that a Chamber Summons application seeking to set aside an arbitral award does not constitute a pleading within the meaning of Order 2 Rule 15 of the Civil Procedure Rules, 2010. As such, it cannot be struck out under that provision. The proper procedure for opposing such an application is by filing grounds of opposition and a replying affidavit, not by filing a contra application seeking to strike it out. The Plaintiff's Notice of Motion application dated 17th May 2012 was therefore misconceived and procedurally improper. The court upheld the preliminary objection and dismissed the Plaintiff's application with costs to the 1st Defendant.

Citation
[2012] KEHC 5536 (KLR)
Parties
Plaintiff: Mohawk Limited; Defendant: Leo Investment Limited; Defendant: R.S. Gill t/a Gill Consult
Court
High Court
Court Station
High Court at Nairobi (Milimani Law Courts)
Jurisdiction
Kenya
Judgment Date
11 October 2012
Case Number
Civil Case 295 of 2008
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection and Notice of Motion
Outcome
preliminary objection upheld; plaintiff's application dismissed with costs
Legal Topics
Arbitration Award Challenge, Striking Out Applications, Preliminary Objection, Definition of Pleading
Source Language
English
Civil Procedure Alternative Dispute Resolution Arbitration Award Challenge Striking Out Applications Preliminary Objection Definition of Pleading

Case Brief

Summary, issues, holding and outcome

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Parties

Mohawk Limited

Plaintiff

Leo Investment Limited

Defendant

R.S. Gill t/a Gill Consult

Defendant

Procedural Posture

Miscellaneous Application / Ruling on Preliminary Objection and Notice of Motion

Legal Issues

  1. 1 Whether a Chamber Summons application to set aside an arbitral award is a pleading capable of being struck out under Order 2 Rule 15 of the Civil Procedure Rules, 2010.
  2. 2 Whether the Plaintiff's Notice of Motion application dated 17th May 2012 was properly brought under the Civil Procedure Rules and Arbitration Rules.
  3. 3 Whether the Plaintiff should have responded to the application to set aside the arbitral award by filing grounds of opposition and a replying affidavit rather than a contra application.

Ratio Decidendi

The court held that a Chamber Summons application seeking to set aside an arbitral award does not constitute a pleading within the meaning of Order 2 Rule 15 of the Civil Procedure Rules, 2010. As such, it cannot be struck out under that provision. The proper procedure for opposing such an application is by filing grounds of opposition and a replying affidavit, not by filing a contra application seeking to strike it out. The Plaintiff's Notice of Motion application dated 17th May 2012 was therefore misconceived and procedurally improper. The court upheld the preliminary objection and dismissed the Plaintiff's application with costs to the 1st Defendant.

Court Disposition

preliminary objection upheld; plaintiff's application dismissed with costs

Orders

  • The Notice of Preliminary Objection is upheld.
  • The Plaintiff's Notice of Motion application dated 17th May 2012 is dismissed with costs to the 1st Defendant.