Gathuku v Kings Pride Constructors Limited & 2 others (Environment & Land Case 256 of 2022) [2023] KEELC 21440 (KLR) (9 November 2023) (Ruling)
Neutral citation:
[2023] KEELC 21440 (KLR)
Republic of Kenya
Environment & Land Case 256 of 2022
JE Omange, J
November 9, 2023
Between
Susan Muthoni Gathuku
Plaintiff
and
Kings Pride Constructors Limited
1st Defendant
Junction Park Limited
2nd Defendant
Chief Land Registrar
3rd Defendant
Ruling
1.In the Notice of Motion application dated the 27th July 2022 the Applicants sought the following orders:
2.The Application was supported by an Affidavit sworn by the Plaintiff who deponed that she entered into a joint venture agreement on or about 4th October 2013 with the 1st Defendant company in which it was agreed that the 1st Defendant would construct (80) apartments unit on suit property Dagoretti /Riruta/5973 herein referred as the suit property.
3.She deponed that they subsequently incorporated a development company the 2nd Defendant, to which she transferred her title to the suit property as her contribution to the project. She states that in spite of necessary approvals to construct having been obtained, the development has not commenced. She has held several meetings with the 1st and 2nd Defendants to resolve the issue but no action has been forthcoming. This has necessitated the filing of this application on grounds of breach of the joint venture agreement.
4.The 1st and 2nd Respondents raised a preliminary objection dated 31st January 2023 on grounds that the court lacks jurisdiction to entertain the application as the joint venture agreement had an arbitration clause that provided for a dispute resolution mechanism. The Respondents contend that the Plaintiff is in violation of Section 6 and 7 of the Arbitration Act as she failed to adhere to the Arbitration clause.
5.The Respondents submitted on the provisions of the Arbitration clause in the Joint Venture Agreement. Counsel cited the provisions of section 10 of the Arbitration Act that bars courts from intervening in a matter governed by the Act and placed reliance in the determination given in the case of Union Technology Kenya Limited v City county Government of Nakuru [2017] eKLR.
6.Counsel referred the court to the provisions of Article 159(2)(c) of the Constitution as read together with the above-mentioned sections of the Arbitration Act. Counsel urged the court to give effect to the agreement.
7.Counsel submitted that the issue of jurisdiction had been raised at the earliest opportunity as was held in the case of Mukisa Biscuit Manufacturing Co Ltd versus West End Distributors Ltd (1969) EA 696.
8.Even after being given several opportunities to do so, the Plaintiff did not file any submissions. The law with regards to Preliminary objection was settled by the case of Mukisa Biscuit Manufacturing Co. ltd v West End Distributors ltd. [1969] EA 696, at the Court of Appeal for East Africa, where Law J.A. and Newbold P. held as follows respectively
9.From the foregoing, it is evident that a Preliminary objection raises a pure point of law, which is argued on the assumption that all facts pleaded by the other side are correct. A preliminary objection cannot lie if additional facts have to be ascertained from elsewhere or if the court is called upon to exercise judicial discretion. The Court has to be satisfied that there is no proper contest as to the facts. The facts ought to be agreed on as they are prima facie presented in the pleadings before the court.
10.The undisputed facts in this case are that the parties did enter into a joint venture agreement which agreement has an arbitration clause that gives effect to arbitration as a mode of resolving disputes. The venture agreement was attached to the plaintiff’s affidavit.
11.The only issue for determination is therefore
Whether this court has jurisdiction to deal with the dispute in question.
12.The issue of jurisdiction is well settled in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1, where Nyarangi J. of the Court of Appeal held that:
13.In this case clause 12 of the Joint venture agreement, which is before this court provides that any dispute, difference or question arising at any time between the parties touching on the interpretation of the agreement or on rights of the parties shall be referred to arbitration. The intention of the clause was expressly stated and is clear to be in mandatory terms that parties should abide to. The basis of this application is the alleged breach by the 1st and 2nd defendants of terms of the joint venture agreement and therefore, falls under the realm of Clause 12 on Arbitration of the said Agreement.
14.The parties herein clearly intended that if there was any dispute it would be resolved by way of Arbitration. The Constitution of Kenya 2010 mandated the Judiciary to promote Alternative Dispute Resolution Mechanisms. This provision no doubt was introduced into the Constitution to enhance efficiency of courts which were struggling under ever increasing caseloads. Courts must breathe life into this Constitutional provision by promoting where possible Alternative Dispute Resolution.
15.Jurisdiction has been defined in Halsbury’s Laws of England (4th Ed.) Vol. 9 at page 350 as “…the authority which a Court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for decision.”
16.I hold the same view that the court held in County Government of Kirinyaga v African Banking Corporation Ltd [2020] eKLR wherein it was stated;
17.In the end I find that the notice of preliminary objection has merit. The application and suit are struck out with no orders as to costs.
DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 9TH DAY OF NOVEMBER 2023.JUDY OMANGEJUDGEIn the presence of: -No appearance by the partiesSteve - Court Assistant