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ELCAllowedMiscellaneous Application (ELC Case No. 354 of 2013 reference)· [2020] KEELC 3216 (KLR)

Rebecca Ndanu Munguti v Archer Dramond Morgan Limited [2020] KEELC 3216 (KLR)

Environment and Land Court
3 March 2020
912 words in judgment
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The bottom line

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A Kenyan court turned an arbitrator's award into a binding judgment, and barred the losing party from re-arguing an issue a judge had already decided.

What this practically means

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Executive summary

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The Applicant, who had filed ELC Case No. 354 of 2013 seeking specific performance of a sale agreement dated 8/11/2006 over a house in Nairobi, moved the court by Notice of Motion under Section 36(1) of the Arbitration Act seeking adoption of the final award of arbitrator Patterson Munene Kamaara published on 25/4/2017 as the court's judgment. An earlier attempt to have judgment entered directly in the ELC suit was rejected by Eboso J in a ruling of 24/6/2019, who directed that a miscellaneous application was the proper procedure; Eboso J then recused himself and the file was reallocated. The Respondent opposed adoption only in respect of paragraph (D) of the award on mesne profits, contending that mesne profits fell outside the terms of reference, that clause 11 of the agreement limited recoverable damages, and that the award was illegal, irregular and biased. The Applicant, relying on George Kamau Kimani and the Trade Bank Limited decision on issue estoppel, argued mesne profits had been claimed as a relief for breach of contract and that Eboso J had already found the issue properly within the reference. The court agreed that Eboso J had determined the scope question and applied issue estoppel to bar the Respondent from relitigating it. The court allowed the application, entered judgment in terms of the entire final award, and awarded the Applicant the costs of the application. Judgment delivered at Nairobi on 3rd March 2020 by K. Bor J.

Key legal issues

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01

Adoption of the arbitral award under Section 36(1) of the Arbitration Act

Holding

The application was allowed and judgment entered in terms of the whole of the final award dated 25/4/2017, including the mesne profits award

Reasoning

The court noted that Eboso J had, in his ruling of 24/6/2019, already dealt with the mesne profits issue at paragraphs 15 to 18 and found the dispute properly within the scope of the reference. The Respondent's objection was confined to paragraph (D) of the award, but the court held the Respondent estopped from relitigating that point, applying the doctrine of issue estoppel. The award was therefore adopted as the judgment of the court.

p. 2
02

Whether the mesne profits award exceeded the scope of the reference to arbitration

Holding

The court found, following Eboso J's prior ruling, that the dispute relating to mesne profits was properly within the scope of the reference

Reasoning

The Respondent argued that clause 11 of the sale agreement limited damages and that the mesne profits award was beyond the terms of reference. The Applicant contended mesne profits had been claimed as a relief for breach of contract. The court observed that Eboso J had already decided the point, and applying issue estoppel, declined to permit the Respondent to contend otherwise.

p. 2

Legal principles established

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  • Issue estoppel precludes a party from contending the contrary of a precise point already distinctly put in issue and determined against him in a prior judicial decision between the same parties, even where the causes of action differ

Court orders

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  1. 1.The application dated 1/7/2019 is allowed and judgment is entered in terms of the final award given by Patterson Munene Kamaara, arbitrator, dated 25/4/2017, as the final judgment of the court
  2. 2.The Applicant is awarded the costs of the application

Authorities

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Legislation

  • Arbitration ActSection 36(1)

Cases cited (2)

  • George Kamau Kimani and 4 others v the County Government of Trans Nzoia
  • Trade Bank Limited v LZ Engineering Construction Limited
    [2001] EA 266
Jurisdiction invoked
Section 36(1) of the Arbitration Act, No. 4 of 1995

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Rebecca Ndanu Munguti v Archer Dramond Morgan Limited [2020] KEELC 3216 (KLR)", Case Analysis (2020). Miscellaneous Application (ELC Case No. 354 of 2013 reference). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3216/eng@2020-03-03

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