[2006] KEHC 1818 (KLR)
The court found that the defendant failed to demonstrate the existence of a valid and binding arbitration agreement between the parties. The documents relied upon by the applicant did not constitute an arbitration agreement and were not relevant to the respondents' suit. The court further noted that the application...
Source-derived case information.
- Citation
- [2006] KEHC 1818 (KLR)
- Parties
- Plaintiff: Mathew Ngigi Macharia; Plaintiff: Monica Njeri Kimemia; Defendant: Francis Nginge Nyoike
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1148 of 2005
- Procedural Posture
- Civil Case / Ruling on Chamber Summons for Stay of Suit Pending Arbitration
- Outcome
- application dismissed with costs to the respondents
- Legal Topics
- Stay of Proceedings, Arbitration Agreement, Eviction, Mesne Profits, Power of Sale, Vacant Possession
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mathew Ngigi Macharia
Plaintiff
Monica Njeri Kimemia
Plaintiff
Francis Nginge Nyoike
Defendant
Procedural Posture
Civil Case / Ruling on Chamber Summons for Stay of Suit Pending Arbitration
Legal Issues
- 1 Whether the suit should be stayed pending arbitration on the basis of an alleged arbitration agreement.
- 2 Whether there exists a valid and binding arbitration agreement affecting the parties to this suit.
- 3 Whether the defendant's application for stay is an abuse of the court process.
Ratio Decidendi
The court found that the defendant failed to demonstrate the existence of a valid and binding arbitration agreement between the parties. The documents relied upon by the applicant did not constitute an arbitration agreement and were not relevant to the respondents' suit. The court further noted that the application was unfounded, lacked merit, and appeared to be intended solely to delay the respondents' suit. Consequently, the application for stay of proceedings was dismissed with costs to the respondents.
Court Disposition
application dismissed with costs to the respondents
Orders
- The defendant's application for stay of proceedings is dismissed.
- Costs of the application are awarded to the respondents.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 1148 of 2005
MATHEW NGIGI MACHARIA……………………....................………………..1ST PLAINTIFF
MONICA NJERI KIMEMIA………………………..................………………….2ND PLAINTIFF
VERSUS
FRANCIS NGINGE NYOIKE…………………………...............……………….DEFENDANT
RULING
The Applicant in the Chamber Summons dated 28th September 2005 is the Defendant in this suit. He seeks, inter alia, an order for the stay of this suit on the ground that the issues in these proceedings are the subject of an Arbitration Agreement pursuant to which arbitration proceedings are already in place.
The suit herein is brought by way of an Originating Summons seeking orders against the Defendant/Applicant for vacant possession of L.R. No Thika Municipality Block 9/510 and /or eviction; mesne profits; costs of the suit and any other relief that the court may deem fit and just to grant.
The Plaintiffs/Respondents’ cause of action arises out of a sale of the said property to them by K-Rep Bank in exercise of a chargee’s power of sale. The Defendant, the chargor, has refused to vacate the property. The Respondents have opposed the present application on the strength of their Replying Affidavit sworn by the 1st Respondent stating, inter alia, that the application is fatally and incurably defective is an after thought, lacking in merit and an abuse of the process of court. They further state that they are not party to any Arbitration Agreement affecting their right to bring these proceedings and that no such Agreement has been disclosed to this court. According to the Respondents the Applicant is a vexatious litigant who is bent on denying them possession of the suit premises by abusing the process of court with the filing of numerous actions and applications to deliberately delay justice and cause undue prejudice to them. To this end the Respondents have sought leave to refer to the annextures to the affidavit in support of the Originating Summons. I have perused the said annextures and do find that the Applicant has indeed made various attempts to pre-empt the sale and eventual transfer of the suit property none of which have been successful. I have also studied the documents annexed, to the Applicant’s Supporting Affidavit and have noted that none of them represent the alleged Arbitration Agreement. The purported arbitration clause appears on the letterheads of Waigi Paints and Hardware Limited under cover of which the Applicant has addressed letters to the chargee herein, K-Rep Bank Limited regarding the loan in respect of which the suit property was charged as security and thereafter sold in exercise of the power of sale earlier mentioned. The same do not constitute an Arbitration Agreement at all and are, in any event, not relevant to the Respondents’ suit.
Having considered the application, the Replying Affidavit and all the documentation submitted herein as well as the oral representations made by counsel for the parties hereto I am of the view that this application lacks merit, is unfounded and only intended to delay the Respondents suit.
I am therefore not inclined to allow the application and do hereby dismiss the same with costs to the Respondents.
Dated and Delivered at Nairobi this 14th day of July 2006
M.G. MUGO
JUDGE
Delivered in the presence of
Ndegwa holding brief for Gichohi for the Applicant
Mr Kaburu for the Respondent