China Road and Bridge Corporation (Kenya) v D.M.K. Construction Ltd [2004] KECA 91 (KLR)
The bottom line
#If you agree to settle a dispute through arbitration but then sue in court over the same issue, you lose your right to arbitration.
What this practically means
#Executive summary
#Key legal issues
#Whether the appellant's subsequent filing of suits against the insurers amounted to a renunciation of arbitration warranting review of the order referring the dispute to arbitration
The filing of the two subsequent suits could properly be construed as showing the appellant was no longer ready and willing to do all things necessary to the proper conduct of the arbitration, justifying review of the reference orders
The Court of Appeal held that the act of lodging suits against the insurer over the Performance Bond and Advance Payment Bond, the very reliefs the respondent sought to protect in H.C.C.C. No. 256 of 1999, demonstrated the appellant was no longer ready and willing to perform its obligations under the arbitration agreement. The learned Judge could not be faulted for reviewing his orders so the suit could proceed in court.
The undesirability of parallel court and arbitral proceedings on the same facts
It is undesirable for a court and an arbitrator to concurrently determine multiple suits with the same facts and law, and this supports review of a reference to arbitration
The court adopted the English authority of Taunton Collins v Cromic, holding that the reliefs sought in the two insurance suits included orders to stop recourse to the Performance and Advance Payment Bonds, and a decision by the arbitrator might contradict decisions by the court in those suits and vice versa, which would ridicule judicial process.
Whether misstatement or omission of the legal basis of the application for review was fatal
It was not fatal: under Order L rule 12 of the Civil Procedure Rules no application shall be refused merely by reason of failure to state the provision under which it is made
The Notice of Motion cited Order 44 Rules 1 and 2, Order 50 Rule 17 and Section 3A of the Civil Procedure Act. The court held that even if the wrong provisions were cited, Order L rule 12 cures the omission, and since the appellant was generally asking for review, the application was properly made under Order XLIV rule 1(1) on the ground of sufficient reason.
Legal principles established
#- A party who, after obtaining a stay of proceedings pending arbitration, institutes other suits seeking reliefs touching the same subject matter, by conduct waives its right to rely on the arbitration clause and may have the order of reference to arbitration reviewed
- It is undesirable to maintain two disparate tribunals (the Court and an Arbitrator) concurrently determining multiple suits with the same facts and law; such circumstances constitute special reasons justifying refusal of a stay or review of an order of reference to arbitration
- Under Order L rule 12 of the Civil Procedure Rules, the failure to state, or to state correctly, the provision under which an application is made is not fatal to the application
Court orders
#- 1.The appeal is dismissed with costs
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 256 of 1999
- Jurisdiction invoked
- First appeal from the High Court under the Court of Appeal's appellate jurisdiction (the judgment does not cite the specific constitutional/statutory provision)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ikhoni Ligabo v Dr. Machanja Ligabo & Inyama Ligabo (Succession Cause)[2011] KEHC 3469 (KLR)17 Mar 2011applied
- WAMITHI MWANGI v BERNARD NDERITU[2008] KEHC 3544 (KLR)21 Jan 2008applied
Cite this brief
#Cite this brief
Caselaw, "China Road and Bridge Corporation (Kenya) v D.M.K. Construction Ltd [2004] KECA 91 (KLR)", Case Analysis (2004). Civil Appeal No. 325 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2004/91/eng@2004-07-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.