[2019] KEHC 5210 (KLR)
The court found that the chamber summons filed by the applicant was incompetent as it was not anchored on any substantive originating summons, which was not on record. Furthermore, the court held that it could not issue a ruling on the stay of arbitral proceedings as the parties had already entered into a consent...
Source-derived case information.
- Citation
- [2019] KEHC 5210 (KLR)
- Parties
- Applicant: The Mpesa Academy Limited; Respondent: Lalji Meghji Patel & Co. Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application E043 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application
- Outcome
- Ruling deferred pending proof of filing of originating summons; action to be struck out and interim consent order set aside if not proved.
- Judges
- MM Kasango
- Legal Topics
- Interlocutory Applications, Originating Summons, Consent Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
The Mpesa Academy Limited
Applicant
Lalji Meghji Patel & Co. Ltd
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application
Legal Issues
- 1 Whether an interlocutory application can stand without a substantive originating summons on record.
- 2 Whether the court can issue a ruling on a matter already disposed of by consent of the parties.
- 3 Whether the court has jurisdiction to set aside a consent order entered by the parties.
Ratio Decidendi
The court found that the chamber summons filed by the applicant was incompetent as it was not anchored on any substantive originating summons, which was not on record. Furthermore, the court held that it could not issue a ruling on the stay of arbitral proceedings as the parties had already entered into a consent order granting the stay, and the court lacked jurisdiction to set aside or vary such a consent order in the absence of exceptional circumstances. The applicant was directed to prove the filing of an originating summons, failing which the action would be struck out and the interim consent order set aside. The issue of costs was deferred pending confirmation of the existence of the...
Court Disposition
Ruling deferred pending proof of filing of originating summons; action to be struck out and interim consent order set aside if not proved.
Orders
- Applicant to prove filing of originating summons at the reading of the ruling.
- In default of such proof, the action will be struck out and the interim consent order set aside.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL & TAX DIVISION
MISC APPLICATION NO. E043 OF 2018(OS)
THE MPESA ACADEMY LIMITED..................APPLICANT
-VERSUS-
LALJI MEGHJI PATEL & CO. LTD..............RESPONDENT
RULING
1. I believe this ruling date was given by mistake of both the court and the learned advocate. There are two reasons why I say so and it will become apparent herein below.
2. The applicant Mpesa Academy Limited filed a chamber summons dated 4th July 2018. That chamber summons is an interlocutory application. It ought to have had the foundation of a substantive suit. The chamber summons indeed state in its prayers that the prayers sought are pending the hearing and determination of an originating summons. That originating summons is not on court record. It seems that the originating summons was never filed by the applicant. This is evident from the court receipt and the court’s assessment of fees which shows that there was no originating summons when the applicant filed the chamber summons. The fees assessed at the time the chamber summons was filed do not include an assessment for an originating summons. It follows that the chamber summons being an interlocutory application not founded on a substantive claim/suit is incompetent. It cannot stand.
3. The 2nd reason I say that the ruling date was set in error, is because the parties by consent before me on 24th October 2018 consented to the granting of the very orders this ruling was to consider. The order consented to by the parties on 24th October 2018 was to the effect that:
“that an order be and is hereby granted forthwith staying the arbitral proceedings between the applicant and the respondent currently pending before the honourable arbitrator, Mr Tom Oketch, pending hearing and determination of the originating summons dated 4th July 2018”.
4. Ofcourse as discussed above, there is no originating summons dated 4th July 2018 on record. But the fact remains that the parties consented to stay of arbitral process pending hearing and determination of the originating summons.
5. It follows that even if the applicant did file an originating summons which I have not sighted in this file, there being a consent as reproduced above, would prevent me from giving a ruling on whether or not to stay the arbitral process. This is because, the court would not have jurisdiction to set aside parties consent.
6. At the reading of this ruling, I will require the applicant to prove the filing of an originating summons in this matter and in default of such proof this action will be struck out and the interim consent order will consequently be set aside. The issue of costs will also be determined once the applicant confirms whether or not the originating summons was filed.
DATED and SIGNED at NAIROBI this 24TH day of JULY, 2019.
MARY KASANGO
JUDGE
Ruling ReadinOpen Courtin the presence of:
Sophie..................................... ..............COURT ASSISTANT
..........................................................FOR THE APPLICANT
......................................................FOR THE RESPONDENT