[2012] KEHC 346 (KLR)

[2012] KEHC 346 (KLR)

The court found that the preliminary objection raised by the defendant did not disclose pure points of law that could dispose of the suit at this stage. The arbitration clause in the contract set out a procedure for commencing arbitration but did not bar the plaintiff from seeking preservatory orders from the court pending arbitration. The court held that the issue of whether the suit was authorized by a board resolution is a matter of evidence, not a preliminary point of law, especially as there was no dispute among directors. The alleged conflict of interest by the plaintiff's advocate, who witnessed the contract, did not warrant striking out the suit, though the court advised...

Citation
[2012] KEHC 346 (KLR)
Parties
Plaintiff: Rapok Construction and General Repairs Ltd; Defendant: Cykim Ltd
Court
High Court
Court Station
High Court at Meru
Jurisdiction
Kenya
Judgment Date
19 December 2012
Case Number
Civil Suit 176 of 2012
Procedural Posture
Civil Suit / Ruling on Preliminary Objection
Outcome
preliminary objection dismissed
Judges
AN Makau
Legal Topics
Arbitration Agreements, Preliminary Objection, Company Capacity to Sue, Injunctive Relief, Contractual Disputes, Advocate Conflict of Interest
Source Language
English
Commercial and Corporate Civil Procedure Alternative Dispute Resolution Arbitration Agreements Preliminary Objection Company Capacity to Sue Injunctive Relief Contractual Disputes +1 more

Case Brief

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Parties

Rapok Construction and General Repairs Ltd

Plaintiff

Cykim Ltd

Defendant

Procedural Posture

Civil Suit / Ruling on Preliminary Objection

Legal Issues

  1. 1 Whether the suit and application are premature under the arbitration clause of the contract.
  2. 2 Whether the suit is fatally defective for lack of board resolution authorizing the suit by the plaintiff company.
  3. 3 Whether the plaintiff's advocate should be disqualified for conflict of interest as a potential witness.

Ratio Decidendi

The court found that the preliminary objection raised by the defendant did not disclose pure points of law that could dispose of the suit at this stage. The arbitration clause in the contract set out a procedure for commencing arbitration but did not bar the plaintiff from seeking preservatory orders from the court pending arbitration. The court held that the issue of whether the suit was authorized by a board resolution is a matter of evidence, not a preliminary point of law, especially as there was no dispute among directors. The alleged conflict of interest by the plaintiff's advocate, who witnessed the contract, did not warrant striking out the suit, though the court advised...

Court Disposition

preliminary objection dismissed

Orders

  • The defendant's preliminary objection is dismissed with costs to the plaintiff.
  • The suit shall proceed to hearing on its merits.