Ford v Sultan Fadhil Maurice M Kilonzo Nicanory A Akanga t/a Fadhil & Kilonzo Advocates (Civil Case 121 of 2008) [2023] KEHC 17532 (KLR) (27 April 2023) (Ruling)
Neutral citation:
[2023] KEHC 17532 (KLR)
Republic of Kenya
Civil Case 121 of 2008
DKN Magare, J
April 27, 2023
Between
Collins Stephen Ford
Plaintiff
and
Sultan Fadhil Maurice M Kilonzo Nicanory A Akanga T/A Fadhil & Kilonzo Advocates
Defendant
Ruling
1.The application filed herein is a strange one. It is liable for dismissal. The application was made on September 12, 2022 vide a Notice of Motion dated September 9, 2022. It is supported by an affidavit of Collins Stephen Ford sworn on September 7, 2022.
2.The reasons are set out at the foot of the application. The main complaint was that the arbitral tribunal has delayed. His last witness was allegedly to be heard on February 22, 2022.
3.The High Court has been around since 1897, the last 125 years. However, parties in their wisdom, or otherwise chose Arbitration as the process to go to. That is their forum.
4.On February 27, 2009, the Justice Sergon noted that the parties had an Arbitration Agreement and thus stayed the suit pursuant to Section 6 of the Arbitration Act which provides as doth: -
5.The difference between the stay under section 6 and other stays is clear cut. The stay under section 6 is actually a referral to the arbitral tribunal. The matter after referral ceases to exist in the high court.
6.In the decision of Blue Limited vs. Jaribu Credit Traders Limited Nairobi (Milimani) HCCS No 157 of 2008 where Kimaru, J stated inter alia as follows:
7.In Kenya Alliance Insurance Co Ltd v Annabel Muthoki Muteti [2020] eKLR, the court, G V ODUNGA had these to say: -32. No party has contested that finding since the Respondent has not cross-appealed despite the fact that in this appeal it seemed to be contending that the matter ought not to have been referred to arbitration. Having referred the matter to arbitration the restrictive interventionist approach in section 10 of the said Act kicked in and the said section provides that:'Except as provided in this Act, no court shall intervene in matters governed by this Act.'
8.The court continued, in Kenya Alliance Insurance Co Ltd v Annabel Muthoki Muteti (supra) that: -
9.When settling for arbitration, the parties deliberately oust the jurisdiction of the courts or otherwise limit the right of the courts to intervene in their dispute. They have no access to the court except as provided under the law.
10.What the Applicant is doing is rehashing their opposition to the chamber summons dated May 15, 2008 where they opposed referral.
11.The dismissal on September 4, 2018 was upon issuance of notices. However, at the time it was issued, there was an order staying the entire suit. The order of stay binds both the court and the parties. A persusal of the file will have shown that the suit is stayed. The stay was at the instance of the Respondent. In National Cereals & Produce Board v JK Muiruri (As a Receiver & Manager of) Kensack Limited & another [2010] eKLR, the court of Appeal held as doth: -
12.The matter was already stayed. There is no prosecution needed in a stayed matter. The stay was Applied for by the respondent. They have not set aside the stay. The suit is therefore reinstated. Order dismissing the suit on September 4, 2018 was issued in error.
13.In James Kiiru Mwangi v Gibson Kimani Mwangi & Another [2021] eKLR, the court, JK Sergon, held as doth: -'The Court of Appeal in the case of Muyodi v Industrial and Commercial Development Corporation & Anor [2006] 1 EA 243 cited by the parties herein, rendered itself thus: 'In Nyamogo and Nyamogo v Kogo [2001] EA 174 this court said that an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case. There is real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law stares one in the face, and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by a long drawn process of reasoning or on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the court in the original record is a possible one, it cannot be an error apparent on the face of the record even though another view was also possible. Mere error or wrong view is certainly no ground for a review although it may be for an appeal. This laid down principle of law is indeed applicable in the matter before us.'30. From the foregoing, it is clear that an error apparent on the face of the record must be a self-evident error which need not require elaborate arguments to support it.
14.In the circumstances there is an error in dismissing the stayed suit. A stay of proceeding is an order barring or restraining parties from prosecuting a suit. If they don’t prosecute it they are perfectly in order. If on other hand they prosecute a stayed order, they will be in contempt of court.
15.Unmerited in terms of delay in filing this application as it is, the Applicants were under no obligation to prosecute a stayed suit. To that extent the order of September 4, 2018 must give way.
16.However, I concerned with the pace of arbitration. It is over 15 years since this suit was filed. I cannot vacate the order for arbitration on the grounds given. However, any decision made is likely to be set aside for misbehavior. conducting an arbitration for over ten years is prima facie evidence of misbehavior.
17.However, I do not have an application before me under section 35 of the Arbitration Act. Finally, this court has no power to supervise, the arbitral tribunal like subordinate court. The tribunal is a creature of Article 159 2(d) of the Constitution, which provides that: -
18.Any filing of documents in this matter after February 27, 2009, real has no effect. The parties should be able to deal with their issues in the Arbitration tribunal.
19.In Nyutu Agrovet Limited v Airtel Networks Kenya Limited;Chartered Institute of Arbitrators-Kenya Branch (Interested Party) [2019] eKLR the Supreme Court, held as follows: -
20.The supreme court concluded as doth: -
21.This case, the Court cannot interfere with the Arbitral tribunal outside Section 35 of the Arbitration Act, which provides that: -
22.The end result is that there is application that has been made under section 35 of the Arbitration act. Without Applicant bringing himself within the purview of Section 35 of the Arbitration Act, we are not entitled to hear him. I have already said enough.
Determination
23.I make the following orders: -a.The order issued on September 4, 2018 dismissing the suit for want of prosecution is set aside and the suit is reinstated and remains stayed pending hearing and determination of the Arbitration.b.The rest of the application dated September 9, 2022. Lacks merit and is dismissed.c.Given that the respondent did not reply and the Application has partly succeeded, each party to bear their own costs.d.This file is hereby closed and returned to the Archives.
DELIVERED, DATED and SIGNED at MOMBASA on this 27th day of April, 2023. Judgment delivered through Microsoft Teams Online Platform.DENNIS KIZITO MAGAREJUDGEIn the presence of:Mr Asige for the ApplicantNo Appearance for the Respondent.Court Assistant - FIRDAUSPage 5 of 5 M.D. KIZITO, J.