[2013] KEHC 6727 (KLR)
The court found that the parties' arbitration clause expressly provided for disputes to be determined by invoking arbitration procedures under the United Kingdom Arbitration Act, with Nairobi as the seat of arbitration, but did not reserve any powers for the High Court of Kenya to enforce or apply the English...
Source-derived case information.
- Citation
- [2013] KEHC 6727 (KLR)
- Parties
- Applicant: Kenya Canners Sacco Society Ltd.; Respondent: Craft Silicon Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 321 of 2011
- Procedural Posture
- Miscellaneous Application / Final Ruling on Preliminary Objection
- Outcome
- preliminary objection upheld; originating summons struck out for want of jurisdiction
- Judges
- DW Mbuteti
- Legal Topics
- Arbitration Agreements, Jurisdiction of Courts, Appointment of Arbitrator
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Canners Sacco Society Ltd.
Applicant
Craft Silicon Ltd
Respondent
Procedural Posture
Miscellaneous Application / Final Ruling on Preliminary Objection
Legal Issues
- 1 Whether the High Court of Kenya has jurisdiction to appoint an arbitrator under an agreement invoking the United Kingdom Arbitration Act.
- 2 Whether the parties' arbitration clause ousts the jurisdiction of the Kenyan courts in favour of English law and procedure.
Ratio Decidendi
The court found that the parties' arbitration clause expressly provided for disputes to be determined by invoking arbitration procedures under the United Kingdom Arbitration Act, with Nairobi as the seat of arbitration, but did not reserve any powers for the High Court of Kenya to enforce or apply the English Arbitration Act. As such, the court held that it lacked jurisdiction to appoint an arbitrator or grant the orders sought in the originating summons. The parties must resort to the courts of England for any relief under the English Arbitration Act, including the appointment of an arbitrator. The preliminary objection was therefore upheld and the originating summons struck out with...
Court Disposition
preliminary objection upheld; originating summons struck out for want of jurisdiction
Orders
- The originating summons dated 26th July 2011 is struck out.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
MISCELLANEOUS APPLICATION NO. 321 OF 2011 (O.S)
IN THE MATTER OF THE ARBITRATION ACT, NO. 4 OF 1995
AND
IN THE MATTER OF AN ARBITRATION AGREEEMENT
KENYA CANNERS SACCO SOCIETY LTD.…….……...….... APPLICANT
VERSUS
CRAFT SILICON LTD……………………..……….............. RESPONDENT
FINAL RULING ON PRELIMINARY OBJECTION
1. Further to the preliminary ruling dated 11th and delivered on 14th June 2013, I have since perused the very large Arbitration Act 1996 of England. I am afraid that I have not found in it anything that may enable this Court to assist the parties to resolve their dispute at this stage. I therefore have to make a final ruling on the preliminary objection raised by the Respondent to the originating summons dated 26th July 2011 filed by the Applicant. One of the grounds for the preliminary objection was that this Court lacks jurisdiction to hear the originating summons or to grant the orders sought.
2. The main orders sought in the originating summons were -
(i) That the court do direct the Law Society of Kenya or the Chartered Institute of Arbitrators (Kenya Chapter) to appoint an appropriate arbitrator to hear and determine the dispute between the parties.
(ii) That a reasonable time for making the award by the arbitrator be fixed.
3. The arbitration clause contained in the contract between the parties provides as follows –
“DISPUTE RESOLUTION
If the parties are unable to resolve any dispute resulting from this agreement by means of joint co-operation or discussion between the individuals directly involved with the execution of this agreement within 1(one) week after a dispute arises, or such extended period of time as the Parties may allow in writing, then such dispute shall be submitted to the most senior executives of the parties who shall endeavor to resolve this dispute within thirty (30) calendar days after it has been referred to them.
Should the dispute not be resolve in the aforesaid manner, then the dispute shall be determined by invoking arbitration procedures as per the United Kingdom Arbitration Act. The place of arbitration shall be Nairobi, Kenya.
The provisions of this clause constitute an irrevocable consent by the parties to any proceedings in terms hereof and no party shall be entitled to withdraw therefrom or claim at any such proceedings that it is not bound by such provisions.”
4. Upon failure of the parties to resolve the dispute internally as provided, the dispute must be determined by invoking the arbitration procedures under the Arbitration Act of England, though ultimately the place of arbitration shall be in Nairobi, Kenya.
5. The parties by their own agreement have not reserved for the High Court of Kenya the power to enforce or to apply the English Arbitration Act to their dispute. It appears that they must resort to the Courts of England to apply the English Arbitration Act to their dispute, including the appointment of arbitrator.
6. In the circumstances I must uphold the preliminary objection raised by the Respondent. This Court lacks jurisdiction to hear and determine the originating summons dated 26th July 2011. The same is hereby struck out with costs to the Respondent. It is so ordered.
DATED AND SIGNED AT NAIROBI THIS 10TH DAY OF OCTOBER 2013
H.P.G. WAWERU
JUDGE
DELIVERED AT NAIROBI THIS 11TH DAY OF OCTOBER 2013