Jacob Omondi Nyambega & 5 others v Victoria Confort Inn Limited & 4 others [2017] KEELC 153 (KLR)

b) That the Respondents in the notice of motion dated 8 th July 2016 do file and serve their replying papers in 14 days and corresponding leave granted to the Applicant to reply thereto in three days after service. c) Filing of written submission on the notice of motion dated 8th July 2016. d) Those parties do maintain the prevailing status quo on possession and use of the suit land pending the hearing and determination of the notice of motion dated 8th July 2016. That further directions were given on 13 th September 2016 on service of the notice of motion dated 8 th July 2016 on the 5 th Defendant among others. The counsel for the Plaintiff indicated that they had filed and served their replying affidavits sworn by Jacob Omondi Nyambega on 10th August 2016 on the 15th August 2016. 4. The counsel for the 2nd to 4th Defendants then filed their written submissions dated 15 th September 2016. The counsel for the Plaintiff thereafter filed their submissions dated 10th October 2016. 5. The following, are the issues for the court’s determination; a) Whether the issues for determination in this suit are among those subject to the 2 nd Defendant’s constitution arbitral clause. b) Whether the parties herein are bound by the arbitral clause in the 2 nd Defendant’s constitution. c) Whether the proceedings hearing should be stayed and matter refered to arbitration. d) Who pays the costs. 6. The court has carefully considered the eleven grounds on the notice of motion dated 8 th July 2016, the affidavit evidence in support by the Hon. Nick Salat sworn on the 8th July 2016, the replying affidavit by Jacob Omondi Nyambega sworn on 10 th August 2016, the written submissions filed by counsel for 2nd to 4th Defendants and the Plaintiffs and come to the following determination; a) That other than the 1st to 3rd Plaintiffs who are described at paragraph 1 of the plaint dated 15 th June 2016 as branch officials of the 2nd Defendant, the other Plaintiffs are described at paragraph 2 of the said plaint as tenants and representatives of other tenant. Though the 1st and 5th Defendants did not file any responses to the notice of motion dated 8 th July 2016, there is nothing on record to show that they are subject to the arbitral clause in the 2 nd Defendant’s constitution or that they had consented to the matter being refered for arbitration. b) That the arbitral clause in the 2 nd Defendant’s constitution as revised in 2012, and which is reproduced at ground (iii) of the notice of motion dated 8th July 2016 and paragraph 10 of the affidavit of Hon. Nick Salat, clearly shows that it is limited to disputes arising out of or relating to the “outcome or the conduct of any nomination for elections or election within the party or any matter connected therewith”. That it is such matters that would be refered by the aggrieved party or parties to the “ Elections Appeals Tribunal”, and in case of any other disputes, it should be refered to arbitration as provided under the article. c) That the claim before this court does not arise out of, or related to the outcome or conduct of nominations or election. It is about whether or not the registration of the 1 st Defendant with the suit land was procured through fraud and if so revocation of their title and permanent injunction. The prayers in the notice of motion dated 15 th June 2016 is for temporary injunctive orders in relation to the suit land and the fact that not all the parties in this suit are members of the 2 nd Defendant means it is not a matter to be handled within the 2nd Defendant internal organs. d) That the Plaintiff has vehemently objected to the matter being refered to arbitration. The 1st and 5th Defendants, have opted not to participate in the application as they did not file any papers to indicate their preferred position. That for the reason set out in (c) above and in the absence of concurrence from the Plaintiffs to a reference to arbitration, the court finds that the matter should be heard in court until and unless there is concurrence on arbitration among the parties. 7. That for the above reasons, the notice of motion dated 8 th July 2016 is without merit and is dismissed with costs. The court further issues the following directions; a) That those parties who have not filed their replies and statements of defence to the notice of motion and suit filed through the documents dated 15th June 2016 should file and serve them within 14 days. b) The party served will have corresponding leave to file a response in 14 days after service. c) That a hearing date for the notice of motion dated 15 th June 2016 be fixed. d) The interim order on maintaining status quo on possession and use of the suit property is extended to the next hearing date.

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It is so ordered. S.M. KIBUNJA ENVIRONMENT & LAND – JUDGE DATED AND DELIVERED THIS 24th DAY OF JANUARY 2017 In presence of; Plaintiffs/Applicants 1st, 3rd & 5th present Defendants/Respondents absent Counsel: Mr. Ouma for the Plaintiffs Mr. Olel for 2nd to 4th Defendant and Mr. Orego for the 1st Defendant. S.M. KIBUNJA ENVIRONMENT & LAND – JUDGE 24/1/2017 24/1/2017 S.M. Kibunja Judge Mr Oyugi court assistant 1st, 3rd and 5th Plaintiffs present Mr Ouma for Plaintiffs/Respondents Mr Olel for 2nd to 4th Defendants. I also hold brief for Orengo for the 1st Defendant. Court: Ruling dated and delivered in open court in presence of 1 st, 3rd and 5th Plaintiffs, their advocates Mr. Ouma, Mr Olel for 2 nd to 4th Defendants and holding brief for Mr. Orego for 1st Defendant. S.M. KIBUNJA ENVIRONMENT & LAND – JUDGE 24/1/2017

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