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ELCPartially AllowedNot stated in judgment (application dated 25/2/2020)· [2021] KEELC 4500 (KLR)

Omari Wafula Asman v John Tabalya Mukite [2021] KEELC 4500 (KLR)

Environment and Land Court
2 February 2021
2,005 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court reinstated a dismissed land suit, ruling both sides shared blame when arbitration stalled because arbitrator fees were never agreed.

What this practically means

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Executive summary

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The plaintiff applied by notice of motion dated 25/2/2020 under Sections 3A and 63(e) of the Civil Procedure Act to set aside an order dismissing his suit for want of prosecution, to reinstate the suit, and to extend time for arbitration. The suit, filed on 29/6/2017 over a lease dispute, had been the subject of an injunction granted on 28/9/2017 pending institution of arbitration proceedings within 30 days. The arbitration failed to commence: although an arbitrator was agreed upon, neither party responded to his remuneration proposals and he withdrew on 27/6/2018. The plaintiff's erstwhile advocate never filed the arbitration claim and never informed him of the dismissal on 1/11/2019, which he learnt of only when served with a bill of costs. The defendant opposed, arguing nothing remained for hearing, the premises had been let to a third party, and the plaintiff was to blame for the arbitration's collapse. The court found both parties partly responsible for the arbitration's failure since filing a claim was tied to unagreed remuneration, which the court's order had not addressed. It further found the dismissal erroneous because the court failed to consider the subsisting arbitration reference, and the delay in applying was not inordinate given doubts over service and intervening holidays. The court allowed the application, set aside the dismissal, reinstated the suit, extended time for arbitration by 60 days, and made costs of the application costs in the cause.

Key legal issues

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01

Whether the failure to commence arbitration was attributable to the applicant alone

Holding

Both parties shared blame; the claim could not be lodged while remuneration remained unagreed, so the applicant could not be fully blamed

Reasoning

The court's order of 28/9/2017 required commencement of arbitration within 30 days but did not deal with remuneration of the arbitrator. An arbitrator was appointed but withdrew after neither party responded to proposed remuneration. Since lodging a claim was inextricably tied to agreement on fees, failure to file could not be laid at the applicant's door alone.

p. 2
02

Whether the delay in bringing the reinstatement application was inordinate

Holding

The delay was not inordinate given service doubts and intervening Christmas holidays

Reasoning

The notice to show cause was served only on the respondent's advocates, leaving doubt about service on the applicant's erstwhile counsel. The applicant learned of dismissal and taxation, changed advocates on 16/12/2019 and filed this application on 25/2/2020; the Christmas holidays intervened, making the delay excusable.

p. 2
03

Whether reinstatement serves any purpose where the suit premises had been let to a third party

Holding

Yes; the arbitration order still subsists and a live suit is necessary for the arbitration to proceed and for parties to report back to court

Reasoning

The respondent admitted the arbitration order remained in existence. The injunction was issued in this suit, and any party would have to return to this suit at the tail end of arbitration. Since the arbitration never commenced through shared fault, the suit had to be revived and time extended for arbitration.

p. 2

Legal principles established

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  • A suit subject to a subsisting order of reference to arbitration ought not to remain dismissed where the arbitration orders must be capable of being enforced and reported back on; reinstatement is necessary to give effect to the arbitration.
  • Notice to show cause proceedings in the plaintiff's absence carry a high risk of erroneous dismissal orders.

Court orders

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  1. 1.The order of the court made on 7/11/2019 dismissing the applicant's suit for want of prosecution is set aside
  2. 2.The suit is reinstated
  3. 3.Time within which the arbitration shall be commenced by the parties is extended by a further 60 days
  4. 4.Costs of the application are costs in the cause

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 63(e)
  • Civil Procedure RulesSection 3A / Order 11
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 50

Cases cited (3)

  • Ivita vs Kyumbu
    1984 eKLR
  • John Nahashon Mwangi Vs Kenya Finance Bank Ltd (In Liquidation)
    2015 eKLR
  • Associated Warehouse Co Ltd and Others Vs Trust Bank Ltd
    HCCC No. 1266 of 1999 (unreported)
Jurisdiction invoked
Sections 3A and 63(e) of the Civil Procedure Act

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, "Omari Wafula Asman v John Tabalya Mukite [2021] KEELC 4500 (KLR)", Case Analysis (2021). Not stated in judgment (application dated 25/2/2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4500/eng@2021-02-02

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