[2021] KEHC 198 (KLR)

[2021] KEHC 198 (KLR)

The court found that the Arbitration Agreement dated 4th December 2017, executed by both parties, set out the entire agreement relating to the subject matter and superseded previous contractual provisions, including those on limitation of time. The Applicant, having signed this agreement and participated in the arbitral process without timely objection to the Counterclaim, was deemed to have waived any right to object on grounds of jurisdiction or limitation. The Counterclaim arose from the same contractual relationship and dispute as the claim, and the directions given by the Arbitrator envisaged the filing of a counterclaim. The court held that the Arbitrator had jurisdiction to...

Citation
[2021] KEHC 198 (KLR)
Parties
Applicant: MC Builder Limited; Respondent: Formula One Garage Limited
Court
High Court
Court Station
High Court at Nairobi (Milimani Commercial Courts)
Jurisdiction
Kenya
Judgment Date
5 November 2021
Case Number
Miscellaneous Application 267 of 2018
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Arbitral Award
Outcome
Application dismissed; arbitral award upheld.
Judges
MW Muigai
Legal Topics
Arbitration Agreements, Jurisdiction of Arbitral Tribunals, Limitation Periods in Arbitration, Counterclaims in Arbitration, Enforcement of Arbitral Awards
Source Language
English
Commercial and Corporate Alternative Dispute Resolution Arbitration Agreements Jurisdiction of Arbitral Tribunals Limitation Periods in Arbitration Counterclaims in Arbitration Enforcement of Arbitral Awards

Case Brief

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Parties

MC Builder Limited

Applicant

Formula One Garage Limited

Respondent

Procedural Posture

Miscellaneous Application / Ruling on Application to Set Aside Arbitral Award

Legal Issues

  1. 1 Whether the Arbitrator had jurisdiction to determine the Counterclaim dated 27th November 2017.
  2. 2 Whether the Counterclaim was time-barred under Clause 45.3 of the Agreement and Conditions of Contract for Building Works.
  3. 3 Whether the Applicant waived its right to object to the Counterclaim by signing the Arbitration Agreement of 4th December 2017.

Ratio Decidendi

The court found that the Arbitration Agreement dated 4th December 2017, executed by both parties, set out the entire agreement relating to the subject matter and superseded previous contractual provisions, including those on limitation of time. The Applicant, having signed this agreement and participated in the arbitral process without timely objection to the Counterclaim, was deemed to have waived any right to object on grounds of jurisdiction or limitation. The Counterclaim arose from the same contractual relationship and dispute as the claim, and the directions given by the Arbitrator envisaged the filing of a counterclaim. The court held that the Arbitrator had jurisdiction to...

Court Disposition

Application dismissed; arbitral award upheld.

Orders

  • The Award by the Arbitrator dated 5th May 2018 dismissing the Preliminary Objection dated 12th January 2018 is hereby upheld.