Ezra Odondi Opar v Insurance Company of East Africa Ltd [2020] KECA 401 (KLR)

The doctrine of sub judice in Section 6 of the Civil Procedure Act is intended to prevent courts of concurrent jurisdiction from simultaneously trying parallel suits. It is incumbent on a party who wishes to rely on it to seek consolidation, seek a stay of proceedings, or object before the trial court. A judge cannot be blamed for failing to address a matter that was never raised before him; only a fleeting reference to other proceedings appeared in the appellant's written submissions.

Section 35(3) bars a setting-aside application made more than three months after receipt of the award, reflecting expedition and finality in arbitration. The respondent's first application dated 3rd September 2004 was within time but Kubo, J. dismissed it as premature because the issue of costs remained unresolved. In view of that direction, Chemitei, J. was entitled to treat the adoption of the consent on costs as completing the arbitral process, which in effect extended the time for the subsequent setting-aside application.

The arbitration clause limited the arbitrator's authority to differences arising out of the policy. The policy indemnified only for loss or damage to the motor vehicle and expressly excluded consequential loss. The award for loss of use, and the interest awarded on it, fell outside the scope of the reference and was severable from the rest of the award, so it alone should have been set aside; the award of Kshs.484,500.00 as the value of the insured vehicle remained valid.

The appellant argued that the respondent was estopped from challenging the arbitrator's jurisdiction. The court reviewed the policy terms and relevant case law and concluded that the loss-of-use claim was expressly excluded from the policy, so the High Court Judge correctly found that the award on that head was beyond the scope of the reference to arbitration and severable; the estoppel complaint therefore did not save that part of the award.