Tamarind Meadows Ltd & others v Wibeso Investments Ltd
The bottom line
#A Kenyan court ruled that waiting seven years to ask for arbitration means you have lost the right to it.
What this practically means
#Executive summary
#Key legal issues
#Whether the court's jurisdiction was ousted by Section 6 of the Arbitration Act
No; the defendants waived their right to refer the dispute to arbitration by inordinate unexplained delay of over 7 years after filing defence
Section 6(1) requires an application for stay and reference to arbitration to be made not later than the time of entering appearance or otherwise acknowledging the claim. Clause 21 of the sale agreement contained an arbitration clause, but the suit was filed on 4th June 2015, the defence was filed on 5th January 2016, and the application was only lodged in January 2023 - about 7 years after acknowledging the dispute. No explanation for the delay was tendered, so the court found laches and waiver and declined to stay the proceedings.
Whether the suit is sub judice or res judicata vis-à-vis Civil Appeal No E356 of 2020 and Machakos ELC No 226 of 2017
No; the parties and the issues in this suit differ from those in the other proceedings
Sections 6 and 7 of the Civil Procedure Act bar trial of suits where the same matter is substantially in issue in a pending or previously decided suit between the same parties litigating under the same title. The plaintiff in this suit is not a party to the appeal; the substantive issue in Machakos ELC No 226 of 2017 was ownership of the suit property, whereas this suit concerns breach of the sale agreement and refund of Kshs 7,700,000/- plus interest, management of the estate and service charges. The claims are therefore neither the same in parties nor in issues.
Legal principles established
#- Under Section 6(1) of the Arbitration Act, an application to stay proceedings and refer a dispute to arbitration must be made not later than the time the party enters appearance or otherwise acknowledges the claim; a party who delays is deemed to have waived the right to arbitrate
- Res judicata and sub judice apply only where the parties and the issues in the two suits are substantially the same
Court orders
#- 1.The notice of motion dated 27th January 2023 is dismissed
- 2.Costs of the application awarded to the plaintiff
- Jurisdiction invoked
- Articles 159 and 162(2)(b) of the Constitution read with the Environment and Land Court Act; notice of motion under Section 6 of the Arbitration Act and Sections 6 and 7 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tamarind Meadows Ltd & others v Wibeso Investments Ltd", Case Analysis (2024). Nairobi HCCC No 489 of 2015 (filed in Machakos ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/152/eng@2024-01-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.