[2001] KEHC 669 (KLR)
The court found that the originating summons failed to specify the Arbitration Act or the rule under which it was brought. This omission made it impossible for the court to determine the legal basis of the application. As a result, the court agreed with the defendant's preliminary objection that the application was...
Source-derived case information.
- Citation
- [2001] KEHC 669 (KLR)
- Parties
- Plaintiff: Nakumatt Holdings Limited; Defendant: Kenya Wildlife Services
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1131 of 2001
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection
- Outcome
- application dismissed with costs
- Judges
- T Mbaluto
- Legal Topics
- Arbitration Agreements, Preliminary Objections, Originating Summons, Appointment of Arbitrator
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nakumatt Holdings Limited
Plaintiff
Kenya Wildlife Services
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the originating summons was properly brought under any specific provision of law.
- 2 Whether failure to specify the applicable Arbitration Act or rule renders the application incompetent.
Ratio Decidendi
The court found that the originating summons failed to specify the Arbitration Act or the rule under which it was brought. This omission made it impossible for the court to determine the legal basis of the application. As a result, the court agreed with the defendant's preliminary objection that the application was patently defective and could not succeed. The application was therefore dismissed with costs to the defendant.
Court Disposition
application dismissed with costs
Orders
- The originating summons is dismissed with costs to the defendant.
Full Case Text
Judgment text and source record
9 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI MILIMANI COMMERCIAL COURTS CIVIL CASE NO. 1131 OF 2001 (O.S.)
NAKUMATT HOLDINGS LIMITED ……………………….. PLAINTIFF VERSUS KENYA WILDLIFE SERVICES …………………………. DEFENDANT
RULING
This originating summons taken out by the plaintiff on 24th July, 2001 seeks an order of this court to refer a dispute which is alleged to have arisen between the plaintiff and the defendant to arbitration and that an arbitrator be appointed, out of a list of three names given in the affidavit in support of the application sworn by Atul Shah, who is a director of the plaintiff company. The appointment of an arbitrator is provided for in an agreement between the parties dated 22. 12. 1999. I have to point out that this originating summons does not specify which Arbitration Act is being invoked. Furthermore, the title of the summons does not indicate pursuant to which rule the matter has been brought.
When the originating summons came up for hearing before me on 22. 11. 2001, Mr. Nyamu for the defendant raised a preliminary objection in which he contended that the application was patently incompetent and should be dismissed.
Having carefully looked at the originating summons now before me, it is impossible to tell under what provisions of the law the same has been brought. I therefore agree with Mr. Nyamu that the application is patently defective and cannot succeed. It is for that reason dismissed with costs.
Dated at Nairobi this 14th day of December, 2001.
T. MBALUTO
JUDGE