[2013] KEHC 1469 (KLR)
The court found that its earlier ruling did not authorize the unilateral appointment of a sole arbitrator by the plaintiffs/respondents. The court had expressly left the appointment of an arbitrator to the parties in accordance with their arbitration agreement and declined to intervene in the process. The court...
Source-derived case information.
- Citation
- [2013] KEHC 1469 (KLR)
- Parties
- Plaintiff: Vinya Wa Aka Group; Plaintiff: Vinya Wa Aka Investment Company Ltd; Plaintiff: Jane Wanza Mutinda; Plaintiff: Teresia Mutinda; Plaintiff: Joyce Nthenya Kiiti; Plaintiff: Ndunge Kiiti; Plaintiff: Rhoda Mueni Musyoka; Plaintiff: Florence Nthambi Muthusi; Plaintiff: Dolly Wanza Kivuvana; Plaintiff: Ruth Kamengele Waki; Plaintiff: Lois Mutany’a Wambua; Plaintiff: Florence Mwikali Kiiti; Plaintiff: Alice Mang’eli Mbindu; Plaintiff: Flora Nduku Mutiso; Plaintiff: Ruth Ndanu Gichohi; Plaintiff: Doris Mutinda Kioko; Plaintiff: Christine M Wasana; Plaintiff: Anchor Building Technologies Ltd.; Defendant: Ensi Investments Limited; Defendant: Edenite Gardens Management Ltd.
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Case 366 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application
- Outcome
- Application partially allowed; only prayer No. 4 granted; costs in the cause.
- Judges
- BT Jaden
- Legal Topics
- Arbitration Clause, Appointment of Arbitrator, Injunctive Relief, Property Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Vinya Wa Aka Group
Plaintiff
Vinya Wa Aka Investment Company Ltd
Plaintiff
Jane Wanza Mutinda
Plaintiff
Teresia Mutinda
Plaintiff
Joyce Nthenya Kiiti
Plaintiff
Ndunge Kiiti
Plaintiff
Rhoda Mueni Musyoka
Plaintiff
Florence Nthambi Muthusi
Plaintiff
Dolly Wanza Kivuvana
Plaintiff
Ruth Kamengele Waki
Plaintiff
Lois Mutany’a Wambua
Plaintiff
Florence Mwikali Kiiti
Plaintiff
Alice Mang’eli Mbindu
Plaintiff
Flora Nduku Mutiso
Plaintiff
Ruth Ndanu Gichohi
Plaintiff
Doris Mutinda Kioko
Plaintiff
Christine M Wasana
Plaintiff
Anchor Building Technologies Ltd.
Plaintiff
Ensi Investments Limited
Defendant
Edenite Gardens Management Ltd.
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the unilateral appointment of a sole arbitrator by the plaintiffs/respondents violated the arbitration clause in the parties' agreement.
- 2 Whether the appointment of Mr. P. Mwaniki Gachoka as sole arbitrator was null and void.
- 3 Whether the court should issue an injunction restraining the plaintiffs/respondents from participating in the arbitration proceedings before the purported arbitrator.
Ratio Decidendi
The court found that its earlier ruling did not authorize the unilateral appointment of a sole arbitrator by the plaintiffs/respondents. The court had expressly left the appointment of an arbitrator to the parties in accordance with their arbitration agreement and declined to intervene in the process. The court reiterated that it cannot midwife the arbitration process by issuing further orders or directions beyond what was previously ruled. As such, the court declined to grant the substantive reliefs sought by the defendants/applicants except to clarify that the parties must abide by their agreement regarding the appointment of an arbitrator. Costs were ordered to be in the cause.
Court Disposition
Application partially allowed; only prayer No. 4 granted; costs in the cause.
Orders
- Prayer No. 4 of the application is allowed in the terms stated by the court.
- Costs of the application to be in the cause.
Full Case Text
Judgment text and source record
53 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
(LAND AND ENVIRONMENTAL DIVISION)
CIVIL CASE NO. ELC 366 OF 2012
VINYA WA AKA GROUP
VINYA WA AKA INVESTMENT COMPANY LTD
JANE WANZA MUTINDA
TERESIA MUTINDA
JOYCE NTHENYA KIITI
NDUNGE KIITI
RHODA MUENI MUSYOKA
FLORENCE NTHAMBI MUTHUSI
DOLLY WANZA KIVUVANA
RUTH KAMENGELE WAKI
LOIS MUTANY’A WAMBUA
FLORENCE MWIKALI KIITI
ALICE MANG’ELI MBINDU
FLORA NDUKU MUTISO
RUTH NDANU GICHOHI
DORIS MUTINDA KIOKO
CHRISTINE M WASANA
ANCHOR BUILDING TECHNOLOGIES LTD. …. PLAINTIFFS/RESPONDENTS
VERSUS
ENSI INVESTMENTS LIMITED
EDENITE GARDENS MANAGEMENT LTD. …… DEFENDANTS/APPLICANTS
R U L I N G
The Notice of Motion dated 29/8/12 seeks the following orders:-
(Spent).
(Spent).
THAT, the Honourable court be pleased pending the hearing and determination of this application to issue an interim injunction against the Plaintiffs/Respondents, their agents, servants and/or employees from participating, taking part, producing witnesses, documents and/or any other evidence and/or being represented by counsel and/or any other person beforeMr P. Mwaniki Gachokathe purported appointed sole arbitrator.
THAT, the Honourable court be pleased to interpret and give effect of the correct and appropriate meaning of its ruling of 7th August 2013 in relation to the Arbitration Clause.
THAT, the purported appointment ofMr. P. Mwaniki Gachokaby the Chairman of the Chartered Institute of Arbitrators (Kenya Branch) be declared null and void.
THAT, the Honourable court do make such directions and/or orders as it deem fit in the circumstances.
THAT, the costs of this application be provided for.”
The application is based on the following grounds:-
The Plaintiffs/Respondents have unilaterally and without involving the Defendants/Applicants caused the appointment ofMr. P. Mwaniki Gachokaas a sole arbitrator.
The purported appointment violates the clear terms of the Arbitration Clause.
The purported appointment is contrary to the ruling delivered by the Honourable court on 7th August 2013.
The purported appointment is null and void.
The Plaintiffs/Respondents are in contempt of court.
The Plaintiffs/Respondents have no respect of the authority and power of the Honourable court.
The Defendants/Applicants were excluded from participation as required by the Arbitration Clause.
The Defendants/Applicants have suffered prejudice and are likely further to suffer loss and damage.
The application is supported by the affidavit of Harun Osoro Nyamboki sworn on 29/8/2012.
There was no reply to the application.
The Ruling by the court dated 7/8/13 allowed prayer No. 2 of the application dated 20/9/2012 and restrained the Defendants by way of injunction from alienating, selling, transferring, developing, allocating, sub-dividing or in any other manner interfering or dealing with the property known as L.R. No. Mavoko Town Block 3/2359 and or its sub-division known as L.R. Numbers 13175 to 13451.
Prayer No. 3 of the application dated 20/9/2012 which sought an order that this court do appoint a sole arbitrator in this matter was not allowed. The court left it to the parties to abide by their own agreement which contains an arbitration clause. The court did not add or subtract anything from the said agreement and cannot now purport to midwife the arbitration process by issuing further orders and/or directions.
Consequently, I only allow prayer No. 4 of the application in the terms stated above. Costs in cause.
B. THURANIRA JADEN
JUDGE
Dated and delivered at Machakos this 25thday of September 2013.
B. THURANIRA JADEN
JUDGE