Lipa Later Limited v Wanini (Cause E750 of 2023) [2023] KEELRC 3193 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection is competent
The objection meets the Mukisa Biscuits threshold because jurisdiction and reference to arbitration are recognised examples of pure points of law.
The court applied the classic Mukisa Biscuits definition. Law JA identified objections to jurisdiction and submissions that parties are bound by an arbitration clause as examples of preliminary objections raising points of law. Newbold P added that such an objection is argued on the assumption that all pleaded facts are correct. On that basis the respondent's objection, grounded on section 6(1) of the Arbitration Act, was competent.
Whether the preliminary objection is sustainable (jurisdiction and exhaustion)
The objection is unsustainable. Arbitration is consensual and cannot be an internal dispute resolution mechanism that must be exhausted; the respondent, having entered appearance and filed a preliminary objection without applying for stay under section 6(1), submitted to the court's jurisdiction.
Section 6(1) of the Arbitration Act requires a party to apply for a stay of proceedings not later than when entering appearance or acknowledging the claim. The respondent filed a memorandum of appearance, notice of appointment and preliminary objection but no application for reference to arbitration. Citing Agip v Kibutu, Mlagui, Mt. Kenya University and Kibunja, the court held that a stay cannot be disguised as a point of law in a pleading, and that the arbitration agreement is merely a defence, not an ouster of jurisdiction.
Legal principles established
#- An arbitration agreement does not deprive a court of jurisdiction; it is a defence that must be invoked by an application for stay of proceedings made not later than the time of entering appearance or acknowledging the claim.
- A preliminary objection cannot be used as a device to seek a stay of proceedings under section 6 of the Arbitration Act; an application for stay must be made by notice of motion before taking any steps in the proceedings.
Court orders
#- 1.The respondent's notice of preliminary objection dated September 18, 2023 is unsustainable and is dismissed with no orders as to costs.
- Jurisdiction invoked
- Article 162(2)(a) of the Constitution of Kenya, 2010 and section 12 of the Employment and Labour Relations Court Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lipa Later Limited v Wanini (Cause E750 of 2023) [2023] KEELRC 3193 (KLR)", Case Analysis (2023). Nairobi ELRC Cause No. E750 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3193/eng@2023-12-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.