[2010] KEHC 162 (KLR)
The court found that in order to preserve the efficacy of the application to set aside the arbitral award, it was fair and proper to maintain the interim stay of execution pending the delivery of the ruling on the preliminary objection. The court reasoned that if the preliminary objection succeeded, the interim...
Source-derived case information.
- Citation
- [2010] KEHC 162 (KLR)
- Parties
- Applicant: Nectel (K) Limited; Respondent: Eastern & Southern African Trade & Development Bank (PTA Bank)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 859 of 2010
- Procedural Posture
- Miscellaneous Application / Interlocutory Ruling on Extension of Interim Stay Pending Determination of Preliminary Objection
- Outcome
- interim stay of execution extended pending ruling on preliminary objection
- Judges
- CM Njagi
- Legal Topics
- Arbitral Awards, Setting Aside Award, Stay of Execution, Preliminary Objection
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nectel (K) Limited
Applicant
Eastern & Southern African Trade & Development Bank (PTA Bank)
Respondent
Procedural Posture
Miscellaneous Application / Interlocutory Ruling on Extension of Interim Stay Pending Determination of Preliminary Objection
Legal Issues
- 1 Whether the interim stay of execution of the arbitral award should be extended pending the ruling on the preliminary objection.
- 2 Whether the application to set aside the arbitral award would be rendered nugatory if execution proceeds before the ruling.
Ratio Decidendi
The court found that in order to preserve the efficacy of the application to set aside the arbitral award, it was fair and proper to maintain the interim stay of execution pending the delivery of the ruling on the preliminary objection. The court reasoned that if the preliminary objection succeeded, the interim orders would lapse automatically, but if it did not, the application would proceed to full hearing and the stay would prevent the application from being rendered nugatory by execution. The balance of convenience and the need to avoid rendering the application academic justified the extension of the interim orders.
Court Disposition
interim stay of execution extended pending ruling on preliminary objection
Orders
- The interim orders granted on 21st October, 2010 are hereby extended to the date of the ruling.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
COMMERCIAL & TAX DIVISION – MILIMANI
MISC. APPLICATION NO. 859 OF 2010
NECTEL (K) LIMITED ………………………...................................................................………….. PLAINTIFF
VERSUS
EASTERN & SOUTHERN AFRICAN TRADE &
DEVELOPMENT BANK (PTA BANK) ………..................................................................………. DEFENDANT
R U L I N G
By this application, the Applicant moves the Court to grant an order setting aside an arbitral award. Pending hearing of the application, the Applicant also applied for a stay of execution of the award. A temporary stay was granted when the application first came for hearing under a Certificate of Urgency.
After the hearing of a Preliminary Objection raised against the application, learned Counsel for the Applicant asked for an extension of the temporary stay order pending the delivery of the ruling. However, learned Counsel for the Respondent opposed the extension.
I have considered the stand taken by both Counsel. As indicated above, this application seeks to set aside an arbitral award. The Preliminary Objection raised in respect thereof may succeed or it may not. If it succeeds, there will be no longer any application and the temporary stay will automatically lapse. But if the Preliminary Objection does succeed, then the application will proceed to full hearing. If by the time the Ruling is delivered the execution will have already issued, then it will be pointless to proceed with the application.
In order to preserve the application in the event the Preliminary Objection does not succeed, I think that it is fair and proper that the temporary stay be maintained.
For that reason, I direct that the interim orders granted herein on 21st October, 2010 be and are hereby extended to the date of the Ruling.
It is so ordered.
DATED and DELIVERED at NAIROBI this 23rd day of November, 2010.
L. NJAGI
JUDGE