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ELCDismissedMiscellaneous Case 4 of 2016· [2022] KEELC 15094 (KLR)

Waita v Venture Holdings Ltd; Koni (Interested Party)

Environment and Land Court
24 November 2022
EWE. K. Wabwoto
1,383 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to send a land dispute to arbitration because the party waited six years before asking, and must now pay the other side's legal costs.

What this practically means

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Executive summary

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The defendant, Venture Holdings Ltd, applied by notice of motion dated March 17, 2022 for a stay of proceedings in Miscellaneous Case 4 of 2016 and a declaration that the Environment and Land Court lacked jurisdiction to hear the plaintiff's originating motion, on the ground that the dispute arose from a sale agreement dated May 11, 2010 over LR No 330/356 - Apartment A7 containing an arbitration clause (clause 18). The plaintiff opposed, arguing through a replying affidavit of Anthony Akelo Okulo and submissions that the applicant had entered appearance by a replying affidavit dated March 14, 2016 and had therefore failed to move the court timeously under section 6 of the Arbitration Act, relying on Chevron Kenya Ltd v Tamoil Kenya Ltd. The applicant relied on Family Bank Ltd v Mokua and Mahican Investments Ltd v Stucci, invoking Article 159(2)(c) of the Constitution. Framing the sole issue as whether proceedings should be stayed under section 6 of the Arbitration Act, E. K. Wabwoto, J applied Esmaj v Mistry Shamji Lalji, Mt Kenya University v Step Up Holding (which quotes Niazsons (K) Ltd v China Road & Bridge) and Eunice Soko Mlagui v Suresh Parmar. The court found the parties had consistently participated in the suit and confirmed readiness for hearing, and held the application was made late and in bad faith, aimed at subverting due process. The application was dismissed in its entirety with costs on November 24, 2022.

Key legal issues

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Whether the court should stay proceedings and refer the parties to arbitration under section 6 of the Arbitration Act

Holding

The application was refused as it was made long after entry of appearance and after the applicant had taken steps in the proceedings, and was found to be in bad faith

Reasoning

The court applied section 6 of the Arbitration Act and the principles in Esmaj v Mistry Shamji Lalji, Niazsons (K) Ltd v China Road & Bridge and Mlagui v Parmar. The applicant had entered appearance by a replying affidavit dated March 14, 2016 yet only filed the stay application on March 17, 2022. Parties had consistently participated in the suit and confirmed readiness for hearing. The court held the application was late and in bad faith, aimed at subverting due process, and dismissed it with costs.

p. 3

Legal principles established

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  • An application for stay under section 6(1) of the Arbitration Act must be made not later than the time the party enters appearance or otherwise acknowledges the claim

Court orders

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  1. 1.The application dated March 17, 2022 is dismissed in its entirety with costs
Jurisdiction invoked
Section 6 of the Arbitration Act (application for stay of proceedings pending arbitration)

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, "Waita v Venture Holdings Ltd; Koni (Interested Party)", Case Analysis (2022). Miscellaneous Case 4 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15094/eng@2022-11-24

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