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High CourtDismissedChamber Summons dated 15th January 2020 (number not stated in judgment)

Applicant v 1st and 2nd Respondents (Olkaria I Additional Unit 6 Geothermal Power Plant Project - interim measures application)

High Court of Kenya
7 February 2020
DMD. S. Majanja
1,453 words in judgment
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The bottom line

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To seek urgent relief under the Arbitration Act in Kenya, your application must be formally linked to an existing lawsuit.

What this practically means

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Executive summary

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The applicant brought a Chamber Summons dated 15th January 2020 under section 7 of the Arbitration Act, 1995 seeking interim measures of protection restraining the respondents from appointing or imposing a third party contractor or other company at the Olkaria I Additional Unit 6 Geothermal Power Plant Project pending the commencement and determination of arbitration proceedings. The 2nd respondent objected that the application was fatally and incurably defective because it was not anchored on a suit, contrary to Rule 2 of the Arbitration Rules, 1997, which requires applications under sections 6 and 7 of the Act to be made by summons in the suit. The 2nd respondent relied on the Court of Appeal decision in Scope Telemantics International Sales Limited v Stoic Company Limited, which held that Rule 2 is mandatory and that an application not premised on a suit is fatally defective. Counsel for the applicant argued that a section 7 application is not capable of being presented by a substantive suit, relying on Safaricom Limited v Ocean View Beach Hotel Limited where Nyamu JA observed that after grant or refusal of an interim measure there is no pending suit. Majanja J accepted the attraction of the applicant's submission but held that the court was bound by the Scope Telemantics decision, which interpreted the same rule and was decided later than the Safaricom case. Citing Mwai Kibaki v Daniel Toroitich Arap Moi and National Bank of Kenya Ltd v Wilson Ndolo Ayah, the judge held that the High Court must follow Court of Appeal precedent even where it disagrees. While sympathising with the applicant and urging the Court of Appeal and the Rules Committee to reconsider Rule 2, the court struck out the Chamber Summons with costs to the respondents.

Key legal issues

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01

Whether a section 7 Arbitration Act application can be brought without a suit

Holding

No - Rule 2 of the Arbitration Rules, 1997 requires such applications to be made by summons in the suit, and the rule is mandatory

Reasoning

The Court of Appeal in Scope Telemantics held that Rule 2 is couched in mandatory terms and that where a clear statutory procedure exists it must be strictly followed. Article 159 cannot cure failure to comply with a mandatory statutory provision. The High Court is bound by that decision and cannot use discretion to override a mandatory statutory provision.

p. 2
02

Whether the doctrine of precedent permits the High Court to depart from Court of Appeal precedent

Holding

No - the High Court must follow Court of Appeal decisions unless distinguishable

Reasoning

The court cited Mwai Kibaki v Daniel Toroitich Arap Moi and National Bank of Kenya Ltd v Wilson Ndolo Ayah for the proposition that lower courts must loyally accept and follow decisions of higher tiers, expressing disagreement but ultimately following the binding decision.

p. 2

Legal principles established

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  • Applications under sections 6 and 7 of the Arbitration Act must be made by summons in a suit; Rule 2 of the Arbitration Rules, 1997 is mandatory and an application not anchored on a suit is fatally defective
  • The High Court is bound to follow decisions of the Court of Appeal even where it disagrees with them

Court orders

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  1. 1.Struck out the Chamber Summons dated 15th January 2020 with costs to the respondents
Jurisdiction invoked
Section 7 of the Arbitration Act, 1995 (interim measures of protection 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, "Applicant v 1st and 2nd Respondents (Olkaria I Additional Unit 6 Geothermal Power Plant Project - interim measures application)", Case Analysis (2020). Chamber Summons dated 15th January 2020 (number not stated in judgment). Source:

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