[2015] KEHC 3789 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL CASE NO. 29 OF 2014

RAZAK MAQBOOK AHMED.......................... 1ST APPLICANT

SABIA KOSAR................................................ 2ND APPLICANT

VERSUS

SHAHEEN KOSSAR...........................................RESPONDENT

RULING

1. Razak Maqbook Ahmed and Sabia Kosar, the 1st and 2nd applicants took out the originating summons dated 17. 12. 2013 in which they sought for the following orders:

THAT the contract made on 1st September 2006, with the respondent provide for Arbitration upon any contractual dispute arising.

THAT the Respondent has failed/neglected and refused to concur with the appointment of an arbitrator causing applicants to apply for this Honourable court to confirm the appointment of Mohammed Yunis Sroya.

THAT the court do confirm the appointment of Mohamed Yunis Sroya as arbitrator of the dispute between the parties as defined in the Arbitration Act and as per the parties agreed.

THAT the cost of this application be met by the Respondent.

The Applicants also asked this court to determine the following questions:

WHETHER the contract entered on first September 2006, provided for arbitration process in settling contractual disputes.

WHETHER the parties agreed specifically in the said agreement on a particular arbitrator to settle their contractual disputes.

WHETHER the said arbitrator has rescinded his appointment as an arbitrator in the contractual dispute.

WHETHER Mohamed Yunis Sroya is competent and suitable too act as an arbitrator in the contractual dispute between the parties herein.

WHETHER the Respondent has refused to submit to the aforesaid arbitration process in settling this contractual dispute herein between the parties herein.

WHETHER the arbitrator has requested for confirmation of his appointment as an arbitrator by the court in the dispute herein between the parties herein.

2. Shaheen Kossar, was named as the Respondent. The originating summons is supported by the affidavit of Razak Maqbook Ahmed. The Respondent filed a replying affidavit she swore to resist the originating summons which affidavit was also countered by the further replying affidavit of Razak Maqbook Ahmed. When the originating summons came up for hearing, learned counsel recorded a consent order to have the same disposed of by written submissions.

3. I have considered the grounds set out on the originating summons and the facts deponed in the affidavits filed for and against the summons plus the rival written submissions. The Applicants have urged this court to confirm the appointment of Mohammed Yunis Sroya as arbitrator over the dispute between the parties in terms of clause 8 of the agreement entered on 1. 9.2006. The Applicants aver that the Respondent has failed or neglected and refused to concur with the appointment of an arbitrator forcing them to seek the intervention of this court. The Respondent urged this court to find that there exists no grounds to refer the dispute for arbitration. It argued that the application allegedly entered on 1. 9.2006 was a forgery and a fraudulent document that was neither entered into nor executed by the parties. The Respondent further alluded that the person who witnessed the execution of the agreement was not an advocate as alleged by the Applicants. The Respondents further argued that the dispute at hand is not the one envisaged in the arbitration agreement. The Applicants disputed the Respondent’s submissions by stating that since the agreement they entered into does not indicate who drew it, it means that the parties personally drew it themselves therefore the same is valid. It is also argued that the agreement was duly executed by the Respondent and that there is no evidence or prior allegation of forgery of the respondent’s signature.

4. The facts of the dispute can easily be deduced from the material placed before this court. First, the 1st Applicant has annexed to the supporting affidavit an agreement allegedly entered into between the applicants and the Respondent on 1. 9.2006. In the aforesaid ‘agreement’ the 1st Applicant is stated to have advanced to the Respondent a sum of kshs.7,000,000/=. In return the Respondent would deposit as security her Grant no. IR 97770 with the Applicants. The loanee (Respondent) was within 3 years from the date of the agreement required to refund the money and the lender (Applicants) to release the title documents to the loanee. The amount advanced was to attract no interest. Clause 8 of the agreement clearly states that should there be any dispute between the parties regarding the true and correct meaning of the agreement the same shall be referred to the arbitration of Mohamed Yunis Sroya whose decision shall be binding on both parties. The Respondent disputed the agreement claiming it is a document that was allegedly drawn and or attested by a stranger who was at all material times not an advocate of the High Court of Kenya nor qualified to so practice as such. Accordingly, the respondent is of the view that the agreement is invalid, null and void for all purposes.

5. The Applicants sought to controvert the respondent’s averments contained in her replying affidavit by filing a further replying affidavit sworn by the 1st Applicant. The Respondent in her written submissions raised a preliminary objection against the admission of the further replying affidavit as evidence because no prior leave was sought and obtained before filing. The record shows that the further replying affidavit was filed on 26. 02. 2015 without leave of court. There was no protest from the Respondent until her advocate filed her submissions on 13. 5.2015, a day before the suit came up for mention. By mere coincidence, that is the date the Applicants advocate also filed their submissions. When the matter came up for mention before this court, it is also by coincidence that both advocates sent other advocates to hold their briefs to confirm the filing of submissions and to take a ruling date. I am of the view that had the principal advocates appeared before this court, the preliminary issue regarding the admissibility of the further replying affidavit would have been mentioned or raised as an argument. This court is faced with limited choices over the issue. Either to order for the striking out of the offending affidavit and proceed to determine the originating summons based on the remaining affidavits or in the alternative to admit the same and postpone the ruling and grant the respondent leave to file a response. Under Order 51 rule 14 (3) of the Civil Procedure Rules, the rules expressly state that any applicant upon whom a replying affidavit or statement of grounds of opposition has been served may with leave of court file a supplementary affidavit. It is obvious that the Applicants herein filed the further replying affidavit in response to the Respondent’s replying affidavit without seeking leave. In the circumstances this court may as well proceed to strike out and expunge from record the offending affidavit. I have already stated that the objection which in my view is a preliminary objection only appeared in the Respondent’s written submissions. The Applicants input over the issue is missing. I recognise the fact that the objection is both substantive and procedural hence it goes to the root of the case. Section 1A(1) of the Civil Procedure Act expressly states that the overriding objective of the Civil Procedure Act and the Rules therein is to facilitate the just, expeditious, proportionate and affordable resolution of civil disputes. By making an order to strike out or expunge from record the further replying affidavit will not in my view, facilitate a fair resolution of the dispute at hand. I will instead exercise my inherent power to defer the ruling of this court and proceed to give the parties sufficient time to address me over the preliminary issue raised in the Respondent’s written submissions. In order to avoid the matter procrastinating further, I hereby suo moto grant the Applicants leave to file a further affidavit in response to the replying affidavit of Shaheen Kossar. I further make orders to deem the further replying affidavit of Razak Maqbook Ahmed sworn on 26. 2.2015 as filed and served with prior leave of court. The Respondent is given leave of 10 days from the date of this ruling to file and serve if any a supplementary replying affidavit to answer the further replying affidavit of Razak Maqbook Ahmed sworn on 26. 2.2015. Parties are at liberty to file and exchange further submission within 7 days from the date of service of the Respondent’s supplementary replying affidavit. Mention on 19. 07. 2015 for oral highlights and to fix a ruling date for the originating summons.

Dated and delivered in open court this 2nd day of July 2015

J. K. SERGON

JUDGE

In the presence of:

N/A for the Applicant

N/A for the Respondent