Fep Holdings Limited v Jossy Preparatory School Ltd & another [2015] KEELC 519 (KLR)

High Court of Kenya

22 April 2015

JOJ. L. ONGUTO

297 words in judgment

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The bottom line

A Kenyan High Court judge spared a dormant land dispute from dismissal because the parties were still fighting over an arbitration award.

What this practically means

Executive summary

The court dealt with a Notice to show cause why the suit should not be dismissed for want of prosecution under Order 17 Rule 2 of the Civil Procedure Rules, the suit having lain dormant for over two years. The suit had sought to have contracts of sale of various parcels of land vacated and avoided, but the dispute had proceeded to arbitration and an Award was made, notwithstanding that the arbitral forum was convened before the suit was filed and the plaintiff, for undisclosed reasons, did not participate in the arbitration. Counsel for the plaintiff, through an affidavit filed by the law firm of Kinoti and Kibe Advocates, explained the non-prosecution. The court found that the suit could not have been prosecuted while the arbitral proceedings were ongoing, particularly since the plaintiff was challenging the Award in High Court Misc. Civil Application No. 600 of 2014; if that challenge succeeded, the suit could be competently resurrected and prosecuted. Satisfied that the reasons advanced for non-prosecution were tenable and acceptable, the court dispensed with the Notice to show cause and directed that the suit await the determination of Misc. Civil Application No. 600 of 2014, after which the plaintiff would decide whether to proceed if the Award is set aside. The court adopted this course as proportionate. No costs order was made and no authorities were cited.

Key legal issues

Whether the suit should be dismissed for want of prosecution under Order 17 Rule 2 of the Civil Procedure Rules

Holding

The Notice to show cause was dispensed with; the reasons for the two-year non-prosecution were held tenable because the dispute had gone to arbitration and the award was under challenge in Misc. Civil Application No. 600 of 2014.

Reasoning

The court noted the affidavit filed by the plaintiff's law firm explaining over two years of inactivity. The suit sought to have contracts of sale of land vacated and avoided, but the matter proceeded to arbitration and an award was made, which the plaintiff was challenging in a separate miscellaneious application. The court held the suit could not competently be prosecuted while the arbitral proceedings and challenge were ongoing, notwithstanding the plaintiff's non-participation in the arbitration, and adopted a proportionate approach of awaiting the outcome.

p. 2

Legal principles established

A suit need not be dismissed for want of prosecution where the delay is attributable to pending arbitral proceedings and related challenge to the arbitral award; a proportionate course is to stay determination pending that challenge.

Court orders

1.The Notice to show cause is dispensed with
2.The suit to await the determination of High Court Misc. Civil Application No. 600 of 2014
3.The Plaintiff will thereafter determine whether to proceed with the suit or not in the event the Award is set aside

Authorities

Legislation

Civil Procedure RulesOrder 17 Rule 2

Jurisdiction invoked: Order 17 Rule 2 of the Civil Procedure Rules (notice to show cause why suit should not be dismissed for want of prosecution)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Fep Holdings Limited v Jossy Preparatory School Ltd & another [2015] KEELC 519 (KLR)", Case Analysis (2015). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/519/eng@2015-04-22

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.