Antony Munywoki Kimeu v Family Signature Limited & 2 others

in Court, the Plaintiff has violated the parties’ agreement. The Applicant asserts that it is willing and ready to proceed to arbitration and urges that the Court lacks jurisdiction to entertain the matter. 3. The Plaintiff opposes the application through Grounds of Opposition dated 20th November 2024, arguing that: the application is an abuse of the court process; the dispute arose long before the suit was filed yet was never referred to arbitration; the application is a scheme to delay the hearing of the suit while the Defendants continue to dissipate company assets; the application has been filed with unreasonable and unexplained delay; and it impedes the administration of justice and the Plaintiff’s right to a fair hearing. 4. The application was canvassed by way of written submissions. The 1st Defendant/Applicant’s submissions are dated 13th November 2024, while the Plaintiff’s submissions are dated 5th February 2025. 5. I have considered the application, the affidavit in support and the grounds of opposition as well as the submissions. The only issue for determination is whether the suit ought to be referred to arbitration. 6. Section 6(1) of the Arbitration Act, 1995 provides: “ A court before which proceedings are brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than the time when that party enters appearance or otherwise acknowledges the claim against which the stay of proceedings is sought, stay the proceedings and refer the parties to arbitration unless it finds— (a) that the arbitration agreement is null and void, inoperative or incapable of being performed; or (b) that there is not in fact any dispute between the parties with regard to the matters agreed to be referred to arbitration.” 7. The Supreme Court in Nyutu Agrovet Limited v Airtel Networks Kenya Limited & Another [2019] eKLR reaffirmed that Courts must respect and enforce arbitration agreements as a manifestation of the principle of party autonomy, except in circumstances where statutory exceptions apply. Similarly, the Court of Appeal in UAP Provincial Insurance Company Limited v Michael John Beckett [2013] eKLR held that where a valid arbitration clause exists, the Court is bound to stay proceedings and refer the matter to arbitration provided the statutory conditions are met. 8. It is not disputed that Clause 31 of the Company’s Articles of Association contains an arbitration clause. However, Section 6(1) is explicit that an application for stay must be made “ not later than the time when that party enters appearance or otherwise acknowledges the claim.” 9. The record shows that the suit was instituted by a plaint dated 24th February 2021, later amended on 26th May 2023. The 1st Defendant entered appearance, admitted the jurisdiction of this Court, and filed pleadings without raising the arbitration clause. On 14th December 2023, the matter was confirmed for hearing on 5th March 2024. On that date, the hearing was adjourned at the instance of the 1st Defendant for failure to file an amended defence, and the matter was fixed for hearing on 1st October 2024. It is only on that hearing date that the 1st Defendant brought this application to the Court’s attention. 10. These facts show that the 1st Defendant not only took several steps in the proceedings but actively submitted to the jurisdiction of this Court without invoking the arbitration clause at the earliest opportunity. The delay of more than three years from the filing of the suit is inconsistent with the prompt invocation contemplated under Section 6(1). https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12049/eng@2025-08-14 2

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11. The law is settled that a party who takes steps in the proceedings before seeking a stay is deemed to have waived the right to rely on the arbitration agreement. In my view, the conduct of the Applicant amounts to acquiescence to the Court process and a clear election to litigate rather than arbitrate. 12. While this Court recognizes the sanctity of arbitration agreements, the conduct of the Applicant shows acquiescence to the Court process. The application has been brought at a late stage, after the matter had been set down for hearing, and in my view, granting it now would not serve the interests of justice but would instead undermine the principle of expeditious disposal of cases under Article 159(2)(b) of the Constitution. 13. For the foregoing reasons, I find that the application dated 23rd September 2024 is devoid of merit. It is hereby dismissed with costs to the Plaintiff. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 14TH DAY OF AUGUST, 2025. PETER M. MULWA JUDGE In the presence of: Mr. Waweru h/b for Mr. Chege for Plaintiff Ms. Were h/b for Mr. Njenga for 1st & 3rd Defendants Court Assistant: Godfrey https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12049/eng@2025-08-14 3

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