[2018] KEELC 2191 (KLR)
The court held that it lacked the power to compel the defendant to arbitrate the dispute in the absence of his consent, as required by Order 46 Rule 1 of the Civil Procedure Rules. The court further found that referring the matter to mediation by the area Chief would not serve any useful purpose given the nature of...
Source-derived case information.
- Citation
- [2018] KEELC 2191 (KLR)
- Parties
- Plaintiff: Mukuru Munge; Defendant: Paul Mutisya Mutuku Kalulu
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 927 of 2016
- Procedural Posture
- Civil Suit / Ruling on Chamber Summons Application for Referral to Arbitration
- Outcome
- application dismissed
- Legal Topics
- Referral to Arbitration, Court Mandated Mediation, Powers of Court Under Civil Procedure Rules, Consent to Arbitration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mukuru Munge
Plaintiff
Paul Mutisya Mutuku Kalulu
Defendant
Procedural Posture
Civil Suit / Ruling on Chamber Summons Application for Referral to Arbitration
Legal Issues
- 1 Whether the court can refer the dispute to arbitration without the consent of both parties under Order 46 Rule 1 of the Civil Procedure Rules.
- 2 Whether the court should refer the matter to mediation by the area Chief under Order 46 Rule 20 of the Civil Procedure Rules.
Ratio Decidendi
The court held that it lacked the power to compel the defendant to arbitrate the dispute in the absence of his consent, as required by Order 46 Rule 1 of the Civil Procedure Rules. The court further found that referring the matter to mediation by the area Chief would not serve any useful purpose given the nature of the dispute and the parties' positions. Consequently, the plaintiff's application for referral to arbitration was dismissed. However, the court noted that the plaintiff retained the option to call the area Chief as a witness if his testimony would assist in resolving the dispute.
Court Disposition
application dismissed
Orders
- The plaintiff's Chamber Summons application dated 5th February, 2018 is dismissed.
- There is no order as to costs.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAIROBI
ELC SUIT NO. 927 OF 2016
MUKURU MUNGE...............................................................PLAINTIFF
VERSUS
PAUL MUTISYA MUTUKU KALULU..........................DEFENDANT
RULING
What is before me is the plaintiff’s Chamber Summons application dated 5th February, 2018 seeking an order that the dispute between him and the defendant be referred to arbitration by the Chief of Lunga Lunga Viwandani Industrial Area, Nairobi and if the dispute is not resolved by the Chief, the plaintiff be at liberty to proceed with the suit before this court. I have considered the plaintiff’s application together with the supporting affidavit. In my ruling of 28th April, 2017, I observed that the dispute between the parties herein should have been referred to the Chief of the area where the suit property is situated for resolution.
The dispute is now before this court. The court can only refer it to arbitration by agreement of the parties under Order 46 Rule 1 of the Civil Procedure Rules. There is no evidence that the defendant who did not respond to the plaintiff’s application has consented to arbitration. This court has no power to force the defendant to arbitrate in the circumstances. I have considered whether it would serve any purpose if I was to refer the matter to mediation by the said Chief pursuant to the powers of the court under Order 46 rule 20 of the Civil Procedure Rules. Due to the nature of the dispute and the positions taken by the parties, I am of the view that mediation will not achieve much for the parties.
For the foregoing reasons, the application dated 5th February, 2018 must fail. However, all is not lost for the plaintiff. He can still call the area Chief as a witness if his evidence would assist the court in determining the dispute. The application is accordingly dismissed with no order as to costs.
Delivered and Dated at Nairobi this 19th Day of July 2018
S. OKONG’O
JUDGE
Ruling read in open court in the presence of:
N/A for the Plaintiff
Mr. Kivuva h/b for Mr. Musyoki for the Defendant
Catherine Court Assistant