Omari Wafula Asman v John Tabalya Mukite [2021] KEELC 4500 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the failure to commence arbitration was attributable to the applicant alone
Both parties shared blame; the claim could not be lodged while remuneration remained unagreed, so the applicant could not be fully blamed
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.
Whether the delay in bringing the reinstatement application was inordinate
The delay was not inordinate given service doubts and intervening Christmas holidays
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.
Whether reinstatement serves any purpose where the suit premises had been let to a third party
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
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.
Legal principles established
#- 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
#- 1.The order of the court made on 7/11/2019 dismissing the applicant's suit for want of prosecution is set aside
- 2.The suit is reinstated
- 3.Time within which the arbitration shall be commenced by the parties is extended by a further 60 days
- 4.Costs of the application are costs in the cause
- Jurisdiction invoked
- Sections 3A and 63(e) of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.