Kitonga & another v Total Kenya Limited & another (Civil Appeal 75 of 2019) [2025] KECA 1855 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that valid arbitration clauses in business contracts override going to court, even after the contract ends.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the arbitration clause in the parties' Marketing Licence Agreements ousted the High Court's jurisdiction to hear and determine the matter
- 2.Whether the 1st respondent's delay in filing/following up the stay application divested it of its right to refer the dispute to arbitration
- 3.Whether the arbitration clause survived the termination of the M.L.A.s
- 4.Whether the joinder of the 2nd respondent, a non-party to the M.L.A.s, defeated the arbitration agreement
Key legal issues
#Whether the arbitration clause ousted the High Court's jurisdiction
Yes - the court found a valid arbitration clause, an arbitrable dispute, and that the trial judge properly applied section 6 of the Arbitration Act in staying the suit and referring the parties to arbitration
Both parties conceded that the M.L.A.s contained arbitration clauses and that a dispute had arisen. Under section 6(1) of the Arbitration Act, a court before which proceedings are brought in a matter subject to an arbitration agreement must stay the proceedings if a party applies upon or before entry of appearance, unless the agreement is null and void, inoperative or incapable of being performed, or there is no dispute. None of those exceptions was established, so the stay and reference were proper.
Effect of delay by the party seeking reference to arbitration
The delay did not divest the 1st respondent of its right to arbitration because it filed the memorandum of appearance and the stay application contemporaneously, putting the appellants on notice
The 1st respondent filed its memorandum of appearance and chamber summons on 3rd April 2018, shortly after entering the matter. Although there was subsequent delay, the appellants were already on notice that the 1st respondent sought compliance with the arbitration clause. Under the authorities, an applicant must bring the application promptly upon entering appearance; promptness in filing satisfied section 6(1), and the subsequent delay could not defeat the statutory right of recourse to arbitration.
Whether termination of the main contract terminates the arbitration clause
No - the arbitration clause is separable and survives termination where obligations remain unfulfilled
The M.L.A.s provided for arbitration of 'a dispute (of any kind whatsoever)' arising in connection with or out of the agreements, which includes disputes on termination. Consistent with the principle of separability relied on by the 1st respondent, an arbitration clause forms a distinct agreement that survives breach, repudiation or termination of the main contract, so the appellants' act of terminating the M.L.A.s and taking possession of the petrol stations did not confer jurisdiction on the High Court.
Whether joinder of a non-party to the arbitration agreement defeats the arbitration clause
No - the 2nd respondent cannot be bound by the arbitration clause, but its joinder did not invalidate the agreement between the appellants and the 1st respondent; the disputes could be severed
The court agreed the 2nd respondent, not being a party to the M.L.A.s, could not be compelled to arbitrate. However, that did not void the arbitration agreement between the appellants and the 1st respondent. The dispute with the 2nd respondent could be severed and resolved by the court while the dispute with the 1st respondent went to arbitration. The 2nd respondent did not challenge the ruling and its counsel confirmed the appeal was between the appellants and the 1st respondent.
Legal principles established
#- Where a suit is founded on a contract containing an arbitration clause, a party who files an application for stay and reference to arbitration upon or contemporaneously with entry of appearance is entitled to a stay unless the arbitration agreement is null and void, inoperative or incapable of being performed, or there is no dispute
- An arbitration clause survives termination of the main contract; arbitration may be invoked where the contract has been terminated as long as obligations remain unfulfilled
- Joinder of a third party who is not a party to the arbitration agreement does not invalidate or void the arbitration agreement between the contracting parties; the disputes can be severed
- Once a suit is filed over a matter subject to an arbitration agreement, the only remedy available to a party is to seek a stay of proceedings and reference to arbitration
Court orders
#- 1.Appeal dismissed with costs to the 1st respondent
- 2.The High Court ruling of 26th November 2018 referring the parties to arbitration and staying the suit stands
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal Rules, 2010 (appellate jurisdiction over High Court rulings; parties invoked section 6 of the Arbitration Act)
Relief refused
#Setting aside the ruling of 26th November 2018 and dismissal of the 1st respondent's stay application
There was a valid arbitration clause, a dispute had arisen which was arbitrable, and the parties were bound by their M.L.A.s; the trial judge properly applied section 6 of the Arbitration Act
Costs
Appeal dismissed with costs to the 1st respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the end we find this appeal devoid of merit and dismiss it with costs to the 1st respondent.
We find that there was a valid arbitration clause in place between the appellants and the 1st respondent; that a dispute arose between the parties which was arbitrable and the parties were bound by their M.L.A.s.
By filing an application for stay of legal proceedings within the prescribed time, the 1st respondent entitled itself of recourse to arbitration.
arbitration can be invoked even where the contract has been terminated as long as obligations of parties under the contract remain unfulfilled.
joinder of the 2nd respondent to the proceedings before the High Court did not invalidate or void the arbitration clause/agreement between the appellants and the 1st respondent.
This being a first appeal, our primary role is to re- evaluate, re-assess, and re-analyze the record and then determine whether the conclusions reached by the learned Judge are to stand or fall and give reasons either way
Issues in the judgment
#The judgment records the 1st respondent's notice of appointment of advocates as filed on 29th March 2018, but elsewhere states the 1st respondent filed a memorandum of appearance and chamber summons on 3rd April 2018, creating slight ambiguity as to when appearance was entered
The case number of the appeal itself is not stated anywhere in the judgment as provided
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kitonga & another v Total Kenya Limited & another (Civil Appeal 75 of 2019) [2025] KECA 1855 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1855/eng@2025-11-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.