[2020] KEHC 8647 (KLR)
The court determined that the dispute between the parties is technical in nature, involving reconciliation of loan account statements, and is therefore better suited for resolution through arbitration rather than judicial determination. The court relied on its constitutional and statutory mandate to promote...
Source-derived case information.
- Citation
- [2020] KEHC 8647 (KLR)
- Parties
- Plaintiff: Surjit Singh Hunjan; Plaintiff: Darkshan Kaur Hunjan; Defendant: The Deposit Protection Fund Board (sued as the Liquidator of Prudential Building Society)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Case 280 of 2008
- Procedural Posture
- Miscellaneous Application / Ruling on Referral to Arbitration for Account Reconciliation
- Outcome
- The issue of reconciliation of accounts is referred to arbitration.
- Judges
- DAS Majanja
- Legal Topics
- Alternative Dispute Resolution, Arbitration Referral, Account Reconciliation, Liquidation Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Surjit Singh Hunjan
Plaintiff
Darkshan Kaur Hunjan
Plaintiff
The Deposit Protection Fund Board (sued as the Liquidator of Prudential Building Society)
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Referral to Arbitration for Account Reconciliation
Legal Issues
- 1 Whether the dispute regarding reconciliation of loan account statements should be determined by the court or referred to alternative dispute resolution mechanisms.
- 2 Whether the court has jurisdiction and power to refer the matter to arbitration given the technical nature of the accounting dispute.
Ratio Decidendi
The court determined that the dispute between the parties is technical in nature, involving reconciliation of loan account statements, and is therefore better suited for resolution through arbitration rather than judicial determination. The court relied on its constitutional and statutory mandate to promote alternative dispute resolution, specifically referencing Article 159(2)(c) of the Constitution, Section 59C of the Civil Procedure Act, and Order 46 rule 20 of the Civil Procedure Rules. Given the parties' agreement to mediation and the technical complexity of the accounting issues, the court exercised its discretion to refer the matter to arbitration, directing that a Certified Public...
Court Disposition
The issue of reconciliation of accounts is referred to arbitration.
Orders
- The parties shall agree on a single Arbitrator who shall be a Certified Public Accountant to determine the matter within fourteen (14) days from the date hereof.
- Failing agreement, the Chairperson of the Institute of Certified Public Accountants (ICPAK) shall appoint a Certified Public Accountant as Arbitrator.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
COMMERCIAL AND TAX DIVISION
CORAM: D. S. MAJANJA J.
MISCELLANEOUS CASE NO. 280 OF 2008
BETWEEN
SURJIT SINGH HUNJAN ................................1ST PLAINTIFF
DARKSHAN KAUR HUNJAN ...................... 2ND PLAINTIFF
AND
THE DEPOSIT PROTECTION FUND BOARD (sued as the
Liquidator of Prudential Building Society) .....DEFENDANT
RULING NO. 2
1. The plaintiffs in this matter brought this Originating Summons dated 2nd April 2008 seeking several questions for determination relating to the sale of the property known as LR. No. 12565/26 by the defendant. What remains for determination is an issue of accounts between the parties regarding what is due. I directed the parties to agree on alternative dispute resolution in order to resolve the outstanding issue of reconciliation of statements of accounts.
2. Both parties are agreeable to mediation. However, it appears from the record that it may not be possible to agree with the issue of accounts as both parties take disparate views of the matter. Both parties have filed separate statements of account in that regard Since the issue is one of accounts, I doubt that the court is well placed to determine the same.
3. Alternative dispute resolution is recognized by the Constitution and it is the court’s constitutional imperative under Article 159(2)(c) of the Constitution to promote all forms of Alternative Dispute Resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms. This imperative is supported by various provisions of the law that grants this court jurisdiction to make necessary orders. Section 59C of the Civil Procedure Act which provides as follows:
59C(1) A suit may be referred to any other method of dispute resolution where the parties agree or the Court considers the case suitable for such referral.
(2) Any other method of alternative dispute resolution shall be governed by such procedure as the parties themselves agree to or as the Court may, in its discretion, order.
(3) Any settlement arising from a suit referred to any other alternative dispute resolution method by the Court or agreement of the parties shall be enforceable as a judgment of the Court.
(4) No appeal shall lie in respect of any judgment entered under this section. [Emphasis mine]
4. There is also Order 46 rule 20 of the Civil Procedure Rules which state as follows:
20. (1) Nothing under this order may be construed as precluding the court from adopting and implementing, of its own motion or at the request of the parties, any other appropriate means of dispute resolution (including mediation) for the attainment of the overriding objective envisaged under sections 1A and lB of the Act.
(2) The court may adopt an alternative dispute resolution and shall make such orders or issue such directions as may be necessary to facilitate such means of dispute resolution.
(3) Where a court mandated mediation adopted pursuant to this rule fails, the court shall forthwith set the matter down for hearing and determination in accordance with the Rules.
5. All the provisions I have cited empower the court to act on application of the parties or suo moto in an appropriate case. As I have shown, this is a case that would benefit from arbitration as the issue of accounts is technical in nature. Given the age of the matter, it is important that the issues be resolved expeditiously through alternative means.
6. Taking into account all the circumstances, I direct that the issue of reconciliation of accounts of the loan statements between the plaintiffs and the defendant shall be referred to arbitration on the following terms;
1. The parties shall agree on a single Arbitrator who shall be a Certified Public Accountant who shall determine the matter within fourteen (14) days from the date hereof;
2. Failing which the Chairperson of the Institute of Certified Public Accountants (ICPAK) shall appoint a Certified Public Accountant as Arbitrator to determine the dispute herein;
3. The Arbitrator shall determine the dispute within sixty (60) days of appointment and file the award before this court;
4. Each party shall bear its own cost of the arbitration;
5. Either party be at liberty to apply.
DATEDand DELIVERED at NAIROBI this7THday of FEBRUARY,2020.
D. S. MAJANJA
JUDGE
Court Assistant: Mr. M. Onyango
Ms Sagini instructed by Cheptumo and Company Advocates for the plaintiffs.
Ms Simiyu instructed by Otieno Okeyo and Company Advocates for the defendant.