[2012] KEHC 605 (KLR)

[2012] KEHC 605 (KLR)

The court held that the arbitration clause in the Interconnection Agreement did not oust the jurisdiction of the High Court but merely provided an alternative dispute resolution mechanism. The defendant, by entering appearance and filing both a defence and a counterclaim, had taken substantive steps in the proceedings and thereby submitted to the jurisdiction of the court. According to established legal principles and Section 6(1) of the Arbitration Act 1995, a party wishing to rely on an arbitration clause must apply for a stay of proceedings before delivering any pleading. By failing to do so and instead participating in the proceedings, the defendant waived its right to invoke the...

Citation
[2012] KEHC 605 (KLR)
Parties
Plaintiff: Safaricom Limited; Defendant: Flashcom Limited
Court
High Court
Court Station
High Court at Nairobi (Milimani Commercial Courts)
Jurisdiction
Kenya
Judgment Date
28 November 2012
Case Number
Civil Case 499 of 2012
Procedural Posture
Civil Case / Ruling on Application to Strike Out Suit for Want of Jurisdiction Due to Arbitration Clause
Outcome
application dismissed with costs to the plaintiff
Judges
A Mabeya
Legal Topics
Arbitration Clauses, Jurisdiction of High Court, Waiver of Arbitration Rights, Interconnection Agreements, Striking Out Pleadings
Source Language
English
Civil Procedure Commercial and Corporate Telecoms and Media Arbitration Clauses Jurisdiction of High Court Waiver of Arbitration Rights Interconnection Agreements Striking Out Pleadings

Case Brief

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Parties

Safaricom Limited

Plaintiff

Flashcom Limited

Defendant

Procedural Posture

Civil Case / Ruling on Application to Strike Out Suit for Want of Jurisdiction Due to Arbitration Clause

Legal Issues

  1. 1 Whether the High Court has jurisdiction to hear the dispute in light of the arbitration clause in the Interconnection Agreement.
  2. 2 Whether the defendant, by entering appearance and filing a defence and counterclaim, waived its right to rely on the arbitration clause.

Ratio Decidendi

The court held that the arbitration clause in the Interconnection Agreement did not oust the jurisdiction of the High Court but merely provided an alternative dispute resolution mechanism. The defendant, by entering appearance and filing both a defence and a counterclaim, had taken substantive steps in the proceedings and thereby submitted to the jurisdiction of the court. According to established legal principles and Section 6(1) of the Arbitration Act 1995, a party wishing to rely on an arbitration clause must apply for a stay of proceedings before delivering any pleading. By failing to do so and instead participating in the proceedings, the defendant waived its right to invoke the...

Court Disposition

application dismissed with costs to the plaintiff

Orders

  • The defendant's Notice of Motion dated 3rd September 2012 is dismissed with costs to the plaintiff.