Areva T & D India Limited v Priority Electrical Engineers Limited Empower Installation Contractors Ltd
The bottom line
#Kenya's Court of Appeal stopped High Court-ordered arbitration in Nairobi, protecting a contract that required arbitration in New Delhi.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal was arguable
The Court found the intended appeal arguable on the questions of the superior court's jurisdiction to entertain a suit subject to an arbitration agreement and to vary the contractual venue of arbitration when that variation was not pleaded.
The Court held that the existence of a clear arbitration clause raised the question of the superior court's jurisdiction to entertain the suit. It also found arguable the point that the High Court made orders on the locus of arbitral proceedings, an issue neither pleaded nor prayed for in the plaint, and whether it had jurisdiction to vary a contract freely entered into by the parties. These sufficed to show the appeal was arguable, without needing to establish it would succeed.
Whether the appeal would be rendered nugatory if stay was not granted
The Court was satisfied the appeal would be rendered nugatory because the applicant would be compelled to arbitrate in a manner and at a place not contemplated by, and in alleged violation of, its agreement with the 1st respondent.
The applicant faced being compelled to enter arbitration before an arbitrator chosen by the Institute of Engineers of Kenya, at a venue different from the contractually agreed New Delhi. The Court noted it did not know why the parties had chosen Indian Courts and not Kenyan Courts for their disputes, and that compelling arbitration outside the agreed terms would render the appeal nugatory if it ultimately succeeded.
Legal principles established
#- On a Rule 5(2)(b) application, the applicant must satisfy the Court both that the intended appeal is arguable and that, if successful, it would be rendered nugatory unless the orders sought are granted.
- An arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully before the Court.
Court orders
#- 1.Stay of the order of Kimaru, J. dated 2nd September 2009, specifically the order that arbitral proceedings commence in Nairobi, Kenya, pending the hearing and determination of the intended appeal
- 2.Costs of the application to be in the appeal
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 535 of 2009
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Areva T & D India Limited v Priority Electrical Engineers Limited Empower Installation Contractors Ltd", Case Analysis (2009). Civil Application 276 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/27/eng@2009-12-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.