[2021] KEHC 9072 (KLR)
The court found that the 2nd Respondent, Evans Wanyonyi Waswa, was not a signatory to the arbitration agreement and did not participate in the arbitration proceedings. The arbitration agreement produced was only signed by the claimant and the 1st Respondent. As such, the arbitrator erred in making an award against...
Source-derived case information.
- Citation
- [2021] KEHC 9072 (KLR)
- Parties
- Applicant: Mary Jane Nalima Pluto; Respondent: Charles Simiyu Chongana; Respondent: Evans Wanyonyi Waswa
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Adoption Cause 6 of 2017
- Procedural Posture
- Adoption Cause / Ruling on Application to Set Aside Arbitral Award and Decree
- Outcome
- Award against 2nd Respondent set aside; parties at liberty to seek redress by other lawful means; each party to bear own costs.
- Judges
- SN Riechi
- Legal Topics
- Arbitral Award Enforcement, Setting Aside Award, Party to Arbitration, Review of Decree
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mary Jane Nalima Pluto
Applicant
Charles Simiyu Chongana
Respondent
Evans Wanyonyi Waswa
Respondent
Procedural Posture
Adoption Cause / Ruling on Application to Set Aside Arbitral Award and Decree
Legal Issues
- 1 Whether the arbitration award dated 6th January 2017 should be adopted and enforced by the court.
- 2 Whether the 2nd Respondent, Evans Wanyonyi Waswa, was a party to the arbitration agreement and liable under the award.
- 3 Whether the decree and orders against the 2nd Respondent should be set aside for lack of participation or agreement.
Ratio Decidendi
The court found that the 2nd Respondent, Evans Wanyonyi Waswa, was not a signatory to the arbitration agreement and did not participate in the arbitration proceedings. The arbitration agreement produced was only signed by the claimant and the 1st Respondent. As such, the arbitrator erred in making an award against the 2nd Respondent. The court held that an arbitral award can only bind parties who have agreed to arbitrate and participated in the proceedings. Consequently, the award of Kshs 65,000 against the 2nd Respondent was set aside. The applicant and 1st Respondent were left at liberty to seek redress against the 2nd Respondent by other lawful means. Each party was ordered to bear its...
Court Disposition
Award against 2nd Respondent set aside; parties at liberty to seek redress by other lawful means; each party to bear own costs.
Orders
- The award of Kshs 65,000 against the 2nd Respondent Evans Wanyonyi Waswa is set aside.
- The applicant or 1st respondent are at liberty to seek redress from the 2nd respondent for the sum by other lawful means.
Full Case Text
Judgment text and source record
46 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
ADOPTION CAUSE NO. 6 OF 2017
MARY JANE NALIMA PLUTO.............................................................APPLICANT
VERSUS
CHARLES SIMIYU CHONGANA.............................................1ST RESPONDENT
EVANS WANYONYI WASWA...................................................2ND RESPONDENT
RULING
This is a notice of motion dated 7. 12. 2017 where the applicant Mary Simiyu Nalima Pluto seeks the following order against the Respondents Charles Simiyu Chongana (1st Respondent) and Evans Wanyonyi Waswa (2nd Respondent).
a. That this honourable court be pleased to read and adopt the arbitration award hereto dated 6th January 2017 and hence be enforced accordingly.
b. Costs be as taxed in the award.
The grounds of the application are that:
a. That the parties herein referred their dispute to arbitration and jointly appointed Emmanuel W. Ouna to be their sole arbitrator in accordance with the Arbitration Act.
b. That they were heard and they came up with an award on agreed terms.
c. That the first Respondent made a down payment of Kshs 18,000 thousand but to date has failed to clear.
While perusing this file to make any ruling I noted that there were proceedings in respect of the application before Aroni J on 5. 3.2018 as here under.
5. 3.2018
Coram: Hon. Ali Aroni J
C/A: Wayongo
Mary Jane: Seeking to have the award adopted. I served both 1st Respondent – present.
1st respondent: I have paid about Kshs 22,000/-
Court: The arbitration is read and adopted… Order (a) and (b) granted.
ALI ARONI
JUDGE
There after a decree was issued on 11. 5.2018 indicating:
DECREE
CLAIM FOR:
a. The Honourable court be pleased to read and adopt the arbitration award hereto dated 6th January 2017 and hence be enforced accordingly.
b. Costs be as taxed in the award.
This matter coming up this 5th day of March 2018 before Hon. ALI ARONI JUDGE, for hearing and adoption of an award dated 6th January 2017 arising from Tribunal Cause NO. 1 of 2017 in the Arbitration and Alternative Dispute Resolution by Hon. E.N Ouna ESQ ARBITRATION and in the presence of the Applicant and the 1st Respondent.
IT IS HEREBY DECREED/ORDERED THAT:
a. The first Respondent to refund to the claimant a sum of Kshs 165,000. 00 only within a period of 90 days from 6th January 2017.
b. The second Respondent to refund to either the Applicant or the 1st Respondent a sum of Kshs 65,000. 000 to make a total of Kshs 230,000 amount to be paid to the Applicant in total by the Respondents.
c. Costs of this award, arbitrator, witnesses and other expenses taxed at Kshs 40,000 be shared among all parties.
Given under my hand and seal of this Honourable Court this 5th day of March 2018.
ALI ARONI
JUDGE
Mr. Kituyi for 2nd Respondent Evans Wanyonyi Waswa filed the application dated 28. 5.2018 seeking the following orders.
a. That there be temporary stay of execution of the attachment of the Applicant property pending haring and determination of this application inter-parties.
b. That this honourable court be pleased to review, vary and/or set aside decree or any orders of Adoption dated 6th January 2017 and the decree and the same be declared illegal and null and void.
The application is supported by the affidavit of Evans Wanyonyi Waswa the applicant in which he depones that he never signed any arbitration agreement that he was never served with summons to appear before the arbitrator, nor did he participate in the proceeding and that he only came to learn of this matter when auctioneers visited his home on 22. 5.2018 and proclaimed his property.
The appellant filed an arbitration agreement dated 6. 1.2019 signed by the claimant and respondent who has indicated the ID NO. as 9299949. Charles Simiyu Chongana. It is not signed by Evans Wanyonyi Waswa the 2nd Respondent. The 2nd Respondent was not therefore a party to the arbitration proceedings nor did he participate in the same. It was therefore an error for the arbitrator to make a finding that he is liable to pay the sum of Kshs 65,000 to either the applicant or 1st respondent. That being so I set aside the award of Kshs 65,000 against the 2nd Respondent Evans Wanyonyi Waswa. The applicant or 1st respondent are at liberty to seek redress from the 2nd respondent for the sum by other lawful means. Each party to bear its own costs.
Dated andDelivered at Bungoma this 12th day of February, 2021
S.N. RIECHI
JUDGE