[2006] KEHC 3452 (KLR)

[2006] KEHC 3452 (KLR)

The court held that the defendant, by filing grounds of opposition and seeking to strike out the suit rather than applying for a stay and referral to arbitration, had taken steps in the proceedings and thereby waived the right to invoke the arbitration clause. The application was not properly brought under Section 6(1) of the Arbitration Act, which only allows for a stay of proceedings and referral to arbitration, not for striking out the suit. Consequently, the defendant's application failed both procedurally and substantively, and the court retained jurisdiction to hear the matter.

Citation
[2006] KEHC 3452 (KLR)
Parties
Plaintiff: Peter Mwema Kahoro; Plaintiff: Samuel Kungu; Defendant: Benson Maina Githethuki
Court
High Court
Court Station
High Court at Nairobi (Milimani Law Courts)
Jurisdiction
Kenya
Judgment Date
24 February 2006
Case Number
Civil Case 1295 of 2005
Procedural Posture
Civil Case / Ruling on Defendant's Application to Strike Out Suit for Lack of Jurisdiction Due to Arbitration Clause
Outcome
defendant's application dismissed with costs to the plaintiffs
Judges
CM Kariuki
Legal Topics
Arbitration Clauses, Stay of Proceedings, Jurisdiction of Court, Waiver of Arbitration Rights
Source Language
English
Civil Procedure Commercial and Corporate Arbitration Clauses Stay of Proceedings Jurisdiction of Court Waiver of Arbitration Rights

Case Brief

Summary, issues, holding and outcome

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Parties

Peter Mwema Kahoro

Plaintiff

Samuel Kungu

Plaintiff

Benson Maina Githethuki

Defendant

Procedural Posture

Civil Case / Ruling on Defendant's Application to Strike Out Suit for Lack of Jurisdiction Due to Arbitration Clause

Legal Issues

  1. 1 Whether the court has jurisdiction to hear the suit in light of the arbitration clause in the sale agreement.
  2. 2 Whether the defendant's actions amounted to a waiver of the right to rely on the arbitration clause.
  3. 3 Whether the defendant's application to strike out the suit was properly brought under the Arbitration Act.

Ratio Decidendi

The court held that the defendant, by filing grounds of opposition and seeking to strike out the suit rather than applying for a stay and referral to arbitration, had taken steps in the proceedings and thereby waived the right to invoke the arbitration clause. The application was not properly brought under Section 6(1) of the Arbitration Act, which only allows for a stay of proceedings and referral to arbitration, not for striking out the suit. Consequently, the defendant's application failed both procedurally and substantively, and the court retained jurisdiction to hear the matter.

Court Disposition

defendant's application dismissed with costs to the plaintiffs

Orders

  • The Chamber Summons application dated 5th November 2005 is dismissed with costs to the Plaintiffs/Respondents.