[2013] KEHC 4531 (KLR)

[2013] KEHC 4531 (KLR)

The court held that although the parties' conduct suggested a willingness to proceed with the suit in court rather than arbitration, there was a clear and unvaried court order staying all proceedings and referring the dispute to arbitration. This order remained in force and had not been set aside, appealed, or replaced. The court emphasized that parties cannot, by their conduct, override or ignore a subsisting court order, and that such orders bind not only the original parties but also any third parties subsequently joined to the proceedings. The court further found that there was no evidence of active steps being taken to pursue arbitration, but this did not entitle the parties to...

Citation
[2013] KEHC 4531 (KLR)
Parties
Plaintiff: Wadaldi Limited; Defendant: Corn Products Kenya Ltd.; Respondent: Equip Agencies Limited
Court
High Court
Court Station
High Court at Nairobi (Milimani Commercial Courts)
Jurisdiction
Kenya
Judgment Date
20 March 2013
Case Number
Civil Case 178 of 2010
Procedural Posture
Civil Case / Ruling on Preliminary Objection and Interlocutory Application
Outcome
preliminary objection upheld; application dismissed for want of jurisdiction
Judges
DO Ogembo
Legal Topics
Arbitration Clauses, Stay of Proceedings, Interlocutory Injunctions, Security for Costs
Source Language
English
Commercial and Corporate Civil Procedure Arbitration Clauses Stay of Proceedings Interlocutory Injunctions Security for Costs

Case Brief

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Parties

Wadaldi Limited

Plaintiff

Corn Products Kenya Ltd.

Defendant

Equip Agencies Limited

Respondent

Procedural Posture

Civil Case / Ruling on Preliminary Objection and Interlocutory Application

Legal Issues

  1. 1 Whether the High Court has jurisdiction to entertain interlocutory applications when there is an existing order staying proceedings and referring the dispute to arbitration.
  2. 2 Whether parties can waive or ignore a court order referring a matter to arbitration by their conduct.
  3. 3 Whether a third party (Interested Party) can rely on a stay order issued before it was joined to the proceedings.

Ratio Decidendi

The court held that although the parties' conduct suggested a willingness to proceed with the suit in court rather than arbitration, there was a clear and unvaried court order staying all proceedings and referring the dispute to arbitration. This order remained in force and had not been set aside, appealed, or replaced. The court emphasized that parties cannot, by their conduct, override or ignore a subsisting court order, and that such orders bind not only the original parties but also any third parties subsequently joined to the proceedings. The court further found that there was no evidence of active steps being taken to pursue arbitration, but this did not entitle the parties to...

Court Disposition

preliminary objection upheld; application dismissed for want of jurisdiction

Orders

  • The preliminary objection raised by the Interested Party is upheld.
  • The Notice of Motion application dated 14th January 2013 is dismissed in its entirety with costs to the Interested Party.