Qambi Group Limited v Aviation Capital Llc

vacating the interim ex parte orders issued by this Court pursuant to the application dated 7th October 2025. 3. Aviation Capital LLC, through its Replying Affidavit and Grounds of Opposition dated 17th December 2025, filed in response to the first application, has raised a preliminary objection. I do consider it prudent to address the said objection in limine, as its determination bears directly upon the jurisdiction of this Court to entertain the substantive prayers sought in the pending application. The respondent contends that the application before this Court is fatally and incurably defective, on the basis that it contravenes Rule 2 of the Arbitration Rules, 1997, which is couched in mandatory terms. 4. Qambi Group Limited, in its rejoinder, has urged this Court to disregard the preliminary objection raised by Aviation Capital LLC, contending that the same amounts to a mere technicality which ought not to be elevated above the dictates of substantive justice. I am therefore confronted with a question that epitomizes the perennial tension between procedural propriety and substantive justice. Analysis and Determination 5. Applications under Sections 6 and 7 of the Arbitration Act are, by express statutory command of Rule 2 of the Arbitration Rules, required to be instituted by way of summons in the suit. The purport and essence of Rule 2 is clear and unequivocal. Qambi Group Limited does not controvert the existence of the statutory provisions, nor does it deny the mandatory tenor of Rule 2. It has however not proffered any justification for its non‑compliance with the procedural requirements prescribed therein. 6. While it may be tempting to dismiss such a lapse as a mere technicality, the jurisprudence of our superior courts has consistently held otherwise. The Court of Appeal in Scope Telematics International Sales Limited V Stoic Company Limited & Another, [2017] eKLR was categorical in its pronouncement that the manner of initiating a suit is not a trivial procedural issue but one that goes to the very foundation of jurisdiction. The Court observed as follows: “ The manner of initiating a suit cannot be termed as a mere case of technicality. It is the basis of jurisdiction... There can be no other interpretation of Rule 2. The application should have been anchored on a suit. It was not about what prejudice the appellant or and 2nd respondent would suffer or what purpose the suit would have served. Discretion cannot be used to override a mandatory statutory provision. For these reasons, we are in agreement with the submissions of the appellant that the application was fatally and incurably defective”. 7. The Court of Appeal went further to underscore that such a transgression cannot be salvaged by recourse to Article 159 of the Constitution, which enjoins courts to administer justice without undue regard to procedural technicalities, nor by reliance on the “Oxygen principles” under Sections 1A and 1B of the Civil Procedure Act. These provisions, laudable as they are in promoting substantive justice, cannot be stretched to cure defects that strike at the root of jurisdiction. As the Court of Appeal made clear, judicial discretion cannot be deployed to override a mandatory statutory requirement. 8. This position was reaffirmed in Machiri Limited V Sogea-Satom Kenya Branch [2020] eKLR, where the Court again reiterated that compliance with Rule 2 of the Arbitration Rules is not optional but a jurisdictional prerequisite. 9. The objection before me must therefore be determined against the background of this settled jurisprudence. The record is unambiguous. The application dated 7th October 2025 was not anchored upon any suit, nor was it brought by way of Chamber Summons as required by Rule 2 of the Arbitration Rules, 1997. In the circumstances, I am constrained to find that the application is https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3895/eng@2026-03-23 2

page 2 of 3

fatally and incurably defective. It cannot be sustained. Having reached this determination, it follows inexorably that the other application, which is predicated upon or consequential to the application of 7th October 2025, cannot stand. Disposition i. For the foregoing reasons, the application dated 7th October 2025 is hereby struck out for being incurably defective. ii. The interim ex parte orders issued consequent to the said application are hereby vacated forthwith. iii. Costs of the application are awarded to the Respondent, Aviation Capital LLC. iv. All other pending applications are rendered otiose and are accordingly marked as spent. DATED, SIGNED AND DELIVERED IN NAIROBI THIS 23RD DAY OF MARCH 2026. F. MUGAMBI JUDGE Delivered in presence of: Mr Mahinda for the applicant Ms Luther and Mr Okwach for the respondent Ms Odero for the IPs Court Assistant: Lillian https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3895/eng@2026-03-23 3

page 3 of 3