[2013] KEHC 3947 (KLR)
The court found that the documents provided by the claimant did not satisfy the requirements of the Arbitration Act, 1995. Specifically, the claimant failed to provide the original arbitration agreement, the original sale agreement, proof of payment, evidence of the respondent's participation in the arbitration, and...
Source-derived case information.
- Citation
- [2013] KEHC 3947 (KLR)
- Parties
- Applicant: Zaituni Nate Makokha; Respondent: Mwatema Nabwoba Olali
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 110 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Enforce Arbitral Award
- Outcome
- Application for leave to enforce arbitral award declined pending provision of required documents.
- Legal Topics
- Enforcement of Arbitral Awards, Arbitration Agreement Requirements, Proof of Participation, Procedural Compliance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Zaituni Nate Makokha
Applicant
Mwatema Nabwoba Olali
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Enforce Arbitral Award
Legal Issues
- 1 Whether the arbitral award can be enforced in the absence of proper arbitration proceedings and supporting documents.
- 2 Whether the claimant has satisfied the requirements under Section 36 of the Arbitration Act for enforcement of the award.
Ratio Decidendi
The court found that the documents provided by the claimant did not satisfy the requirements of the Arbitration Act, 1995. Specifically, the claimant failed to provide the original arbitration agreement, the original sale agreement, proof of payment, evidence of the respondent's participation in the arbitration, and proof that the respondent participated in the selection of the arbitrators. The only document presented was a one-page 'preliminaries' signed by the arbitrators, which did not constitute proper proceedings or a judgment. As a result, the court declined to enforce the arbitral award until the claimant furnished the required documents and evidence, and ordered that the...
Court Disposition
Application for leave to enforce arbitral award declined pending provision of required documents.
Orders
- Claimant to provide the original arbitration agreement between the claimant and the respondent.
- Claimant to provide the original sale agreement between the claimant and the respondent.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
High Court at Kakamega
Miscellaneous Civil Application 110 of 2012 [if gte mso 9]><xml>
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ZAITUNI NATE MAKOKHA ……………………………………….. CLAIMANT
V E R S U S
MWATEMA NABWOBA OLALI ………….………….……….. RESPONDENT
R U L I N G
In her Notice of Motion dated 16. 11. 2012, the applicant is seeking leave to enforce the award made by some two arbitrators against the respondent. The application is supported by her affidavit. It is contended in the application that there was a dispute between the parties involving the sale of plot number North Wanga/Kholera/2007, measuring 0. 80 Ha. The matter was referred to the arbitrators who awarded the claimant KShs.240,000/=, a further KShs.240,000/= was awarded as general damages and costs were taxed by the Arbitrators at KShs.64,000/=.
I have gone through the documents provided by the claimant in form of the application and the proceedings. I do find that those proceedings do not satisfy the provisions of the Arbitration Act 1995. No proper proceedings were provided to this other than a one page document titled PRELIMINARIESand signed by the two Arbitrators, E. W. OYWA & ASSOCIATES and KISEMBE KILISWA. It is clear from that document that the two arbitrators were appointed by the claimant. The evidence of the witnesses and the parties is not indicated. The document indicated as preliminaries cannot pass as proceedings and judgment of the arbitrators.
Under the provisions of Section 36 of the Arbitration Act, I do hereby decline to have that award enforced until the claimant provides the following:-
1. The original arbitration agreement between the claimant and the respondent.
2. The original Sale Agreement between the claimant and the respondent.
3. Proof of payment, if any, to either party involved in the agreement.
4. Proof that the respondent participated in the arbitration.
5. Proof that the respondent participated in the elections of the arbitrators; i.e. that the respondent participated in the elections of the arbitrators and that she/he signed to have the matter heard by two arbitrators.
Further, after filing the above information, the applicant to serve the respondent through the court bailiff/process server for any date that will be given for the hearing of this matter. Unless the above information is provided, the award of the arbitrators shall stand suspended.
DATED AT KAKAMEGA THIS 2ND DAY OF MAY 2013
SAID J. CHITEMBWE
J U D G E
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