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ELCPartially AllowedNot stated in the judgment· [2022] KEELC 2406 (KLR)

THROUGH NELSON MUKORA & ROSE KYATEREKERA v JOIN VEN INVESTMENTS LIMITED & 2 others

Employment and Labour Relations Court of Kenya
17 May 2022
3,182 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled it cannot vary its own post-arbitration orders, and a party who ignored a security-for-costs order lost their challenge to the award.

What this practically means

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Executive summary

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This judgment of the Employment and Labour Relations Court at Machakos (Christine Ochieng, J) determined two competing Notices of Motion arising from proceedings to set aside an arbitral award dated 24th January, 2020. By a Ruling of 4th June, 2021 the court had ordered the Plaintiff, a non-profit membership association, to deposit Kshs. 7,288,388 in a joint advocates' account within 60 days as security for costs, with a 'liberty to apply' clause. The Plaintiff's application of 4th August, 2021 sought a reduction of the deposit to half and a six-month extension of time, relying on the liberty to apply clause, its efforts to raise funds from members, and a part payment of Kshs. 700,000 (later Kshs. 1,550,000). The Defendant's application of 10th August, 2021 sought dismissal of the set-aside proceedings for non-compliance, invoking section 10 of the Arbitration Act. The court framed two issues: its jurisdiction to vary or review the orders of 4th June, 2021, and whether the set-aside proceedings should be dismissed. Applying section 10 of the Arbitration Act and the Lillian S jurisdiction doctrine, and adopting Kamconsult, Anne Mumbi Hinga, Industrial Hardware and Cristel, the court held it was devoid of jurisdiction to vary or review a post-arbitral order, that the liberty to apply clause confers no right to vary an order, and that Civil Procedure Act provisions do not apply post-arbitration. The Plaintiff's application was dismissed with costs; the Defendant's application was allowed, dismissing the set-aside proceedings, with costs of both applications to the Defendant.

Key legal issues

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01

Jurisdiction to vary or review a post-arbitral order

Holding

The court has no jurisdiction under the Arbitration Act to vary or review its orders in post-arbitral proceedings; Civil Procedure Act/Rules provisions do not apply

Reasoning

Section 10 of the Arbitration Act forbids court intervention except as provided in the Act. The Act makes no provision for review of court decisions made in post-arbitral proceedings; the omission is deliberate, to give finality. Sections 3A, 63e and 80 of the Civil Procedure Act are inapplicable. A 'liberty to apply' clause cannot donate jurisdiction where none exists nor be used to avoid compliance with an order.

p. 6
02

Dismissal of the set-aside application for non-compliance with the security for costs order

Holding

The Notice of Motion dated 28th July, 2020 seeking to set aside the Final Award dated 24th January, 2020 is dismissed for the Plaintiff's failure to deposit the ordered security for costs

Reasoning

The court ordered the plaintiff on 4th June, 2021 to deposit Kshs. 7,288,388 as security for costs within 60 days. Despite the lapse of that period, only a part payment (Kshs. 700,000 cheque; later Kshs. 1,550,000 raised) was made. In light of that non-compliance, the court found the defendant's application to dismiss the set-aside proceedings merited and allowed it.

p. 6

Legal principles established

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  • Section 10 of the Arbitration Act bars the High Court from varying or reviewing its own orders made in post-arbitral proceedings; the Act deliberately omits powers of review to provide finality
  • A 'liberty to apply' clause in an order does not confer a right to vary the order; it only allows the court to decide matters arising in the working out of the order
  • A court without jurisdiction must cease to act

Court orders

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  1. 1.The Plaintiff's Notice of Motion dated 4th August, 2021 is dismissed with costs
  2. 2.The 1st Respondent's Notice of Motion dated 10th August, 2021 is allowed; the proceedings commenced by the Plaintiff seeking to set aside the Final Award dated 24th January, 2020 are dismissed
  3. 3.Costs of the two applications awarded to the 1st Respondent

Authorities

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Legislation

  • Arbitration ActSection 10
  • Arbitration ActSection 35
  • Civil Procedure ActSections 3A, 63e and 80
  • Civil Procedure RulesNot specified

Cases cited (20)

  • Koh Ewe Chee v Koh Hua Leong & another
    (2002) 3 SLR 643
  • Kenya Country Bus Owners Association & others v Cabinet Secretary for Transport & Infrastructure & 5 others
    (2014) eKLR
  • Fatuma Zainabu Mohammed v Ghati Dennitah & others
    Petition No 6 of 2013
  • Gogardhan v Barsati
    AIR 1972 ALL 246
  • Westmont Holdings SDN BHD v Central Bank of Kenya
    (Civil Application 10 (E017) of 2021) (2021) KESC 3 (KLR) (Civ) (8 October 2021) (Ruling)
  • Edward Mwaniki Gaturu & another v Attorney General & 3 others
    Petition No 72 of 2013
  • DHL Excel Supply Chain Kenya Limited v Tilton Investments Limited
    (2017) eKLR
  • Kenya Bus Service Ltd & another v Minister for Transport & 2 others
    (2012) eKLR
  • Tumaini Transport Services Ltd v Tata Chemicals Magadi Limited
    (2017) eKLR
  • Dry Associates Limited v Capital Markets Authority & another Interested Party Crown Berger (K) Ltd
    (2012) eKLR
  • Anne Mumbi Hinga v Victoria Njoki Gathara
    [2009] eKLR
  • Kamconsult Limited v Telcom Kenya Limited & another
    [2016] eKLR
  • Dinesh Construction Company (K) Limited v Kenya Sugar Research Foundation
    Nairobi Misc Applic No 272 of 2017
  • Talewa Road Constractors v Kenya National & another
    [2019] eKLR
  • Easy Properties Limited v Express Connections Limited
    Nairobi HCCC E 094 of 2018
  • Macfoy v United Africa Co Limited
    (1961) 3 ALL ER 1169
  • Cristel v Cristel
    (1951) 2 All ER 574
  • Industrial Hardware (Kenya) Ltd & 5 others v Standard Chartered Bank Kenya Ltd
    [1999] eKLR
  • R v Principal Secretary, State Department for Housing and Urban Development, Ex parte Kenyatta Peter & 3 others
    Nairobi JR Appl No 165 of 2013
  • The Owners of Motor Vessel “Lillian S” v Caltex Oil Kenya Limited
    (1989) KLR 1
Jurisdiction invoked
Arbitration Act (sections 10 and 35); the court held it had no jurisdiction to vary or review its post-arbitral order

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, "THROUGH NELSON MUKORA & ROSE KYATEREKERA v JOIN VEN INVESTMENTS LIMITED & 2 others", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2406/eng@2022-05-17

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