KLR WEEKLY e-NEWSLETTER
 

| Issue 099| Newsletter Archive | Thursday 01th April 2010 |

 
   
 
 
CASE OF THE WEEK
 

ARBITRATION CLAUSE IN A CONTRACT OUSTS COURT’S JURISDICTION
 
By Njeri Githang’a Kamau- Advocate

“under the principle of separability of the arbitration clause, where there exists an agreement with an arbitration clause, if a party to the agreement is of the opinion that the agreement is unlawful and therefore invalid, such view does not invalidate the arbitration clause in the agreement”

Kenya Airports Parking Services Ltd & another V Municipal Council of Mombasa [2010] eKLR (www.kenyalaw.org)
High Court at Nairobi
L. Kimaru J.
March 24, 2010

The High Court at Nairobi has dismissed an application seeking the court to consider issues regarding the validity of an agreement between the Kenya Airports Parking Services Ltd and the Municipal Council of Mombasa.  Justice Kimaru in dismissing the application stated that the court lacked jurisdiction to deal with a dispute where parties have agreed to have a dispute between them to be determined by arbitration. 

On June 28 2006, the Kenya Airports Parking Services Ltd and KAPs Municipal Parking Services Ltd (plaintiffs) and the Municipal Council of Mombasa (defendant) entered into an agreement in respect of provision of certain car park management and revenue collection services within certain designated areas of Mombasa Township.  However, a dispute arose and June 17 2009 the plaintiffs filed a suit in court seeking various orders arising out of an alleged breach of the agreement. The plaintiffs averred that the alleged agreement contained an arbitration clause which mandated any dispute between the parties to be referred for resolution by arbitration. They sought interim measures of protection pursuant to Section 7 of the Arbitration Act, 1995 pending hearing and determination of the dispute by arbitration. The said section provides

The application’s application sought to restrain the defendant from purporting to terminate the agreement or to take any action that could jeopardize the continued taking effect of the said agreement pending the hearing of the dispute.  The court issued orders at the ex-parte stage restraining the defendant from terminating the agreement and interpartes hearing was fixed for a given date in June 2009.  However, the hearing of the application did not proceed because plaintiffs’ counsel informed the court that they were exploring the possibility of amicably settling the matter out of court.  The interim orders that were granted by the court were extended to the next date scheduled for the hearing of the application.

Before the said date, the plaintiffs on July 7 2009, asked the court to commit the town clerk, deputy town clerk, treasurer and chief revenue officer to civil jail for contempt of court on the grounds that the said officers had breached the restraining orders issued by the court. 

The defendant responded by seeking the court to set aside the ex-parte restraining order issued earlier and the discharge injunction that had been granted. The defendant contended that the plaintiffs had failed to make full and frank disclosure of all material facts and documents.  It was argued that the plaintiffs had abused the process of the court by seeking to enforce an unlawful and illegal agreement which was contra-statute and had therefore obtained an unfair advantage in process. 
The defendant was aggrieved that the plaintiffs failed to disclose the existence of another suit at the Mombasa High Court and reiterated that the court did not have jurisdiction to grant interim protective relief to the plaintiffs in reinforcement of an alleged agreement that was plainly illegal and unlawful, hence invalid ab initio.  The defendant told the court it could not be bound by the alleged agreement by virtue of  section 143(8) of the Local Government Act because it was executed by individuals in abuse of their offices. 

The plaintiffs’ legal officer, Lawrence Madialo swore a replying affidavit in opposition to the application and deponed that the agreement between the plaintiffs and the defendant was valid having been approved by the relevant organs of the defendant. It was sworn that the internal management rules of the defendant could not be used to invalidate a valid agreement that was entered between the two parties.  He denied that any law had been broken when the said agreement was executed between the plaintiffs and the defendant and reiterated that the existing suit at Mombasa did not determine the validity or otherwise of the agreement which was within the province of the arbitrator who would hear the dispute. 
           
In essence it was the plaintiffs’ case that the agreement that it had entered with the defendant was valid for all intents and purpose.  In this regard the plaintiff wished the dispute between itself and the defendant be determined by arbitration as provided for in the agreement. 
 
On its part, the defendant was submitted that the court could not grant interim protective relief pending reference of the dispute to arbitration when the agreement was clearly entered contrary to the law and executed by officers of the defendant who had abused the mandates of their offices. 

The issues for determination by the court were twofold: firstly, whether the defendant laid sufficient basis for the setting aside of the interim orders of relief granted by the court on the ground that there was no valid agreement which could be enforced by the court.  The second issue was whether the identified officers of the defendant had breached the orders of the court to entitle the court to punish them for contempt.

What is the legal position where a party disputes the validity of an agreement which has an arbitration clause?  The court held that principle of separability of an arbitration clause in an agreement was applicable even where one of the parties was challenging the validity of the agreement itself.  Therefore the issue as to the validity of the agreement was an issue that the arbitrator had jurisdiction to deal with.  The agreement entered between the plaintiffs and the defendant provided for the resolution of any dispute between the plaintiffs and the defendant by arbitration. 

Thus the court made a finding that the parties to the agreement had anticipated that any dispute between them would be resolved by arbitration.  Although the defendant wanted the court to render an opinion regarding the legality of the agreement, under Section 10 of the Arbitration Act, the court lacked jurisdiction to deal with a dispute where parties had agreed to have a dispute between them resolved by arbitration.  This position applied even where one of the parties was challenging the validity of the agreement.  A party who wished to challenge the validity such an agreement could do so at the first instance when the matter was placed before the arbitral tribunal. 

The court affirmed that under Section 17(1) of the Arbitration Act, the arbitral tribunal had powers to render a decision in regard to its own jurisdiction.  The defendant was not prohibited by law from raising the issue regarding the validity of the agreement before the arbitral tribunal. The court could not therefore intervene and consider matters to do with the merit of the dispute between the plaintiffs and the defendant.  That was an issue that was squarely within the province of the arbitrator. The application by the defendant was thus dismissed with costs to the plaintiffs .

With regard to the plaintiffs’ application to have the defendant’s principal officers committed to civil jail for contempt of court, the judge after reading the affidavit sworn by the defendant’s Town Clerk was satisfied that the said officers of the defendant appreciated the consequences of disobedience of the court’s orders. The court commended the advocate of the defendant for impressing upon his client the importance of compliance with orders of the court. At that stage of the proceedings the court refrained from making any determination in regard to whether or not the defendant had disobeyed the orders of the court. 


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SELECTED NOTICES FROM THE KENYA GAZETTE
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SPECIAL ISSUE Vol. CXII No. 31 Dated March 26,2010

GAZETTE NOTICE NO. 3210
THE CONSTITUTION OF KENYA
THE NATIONAL ASSEMBLY AND PRESIDENTIAL
ELECTIONS ACT
(Cap.7)

THE PRESIDENTIAL AND PARLIAMENTARY ELECTIONS
REGULATIONS

ELECTION OF A MEMBER OF PARLIAMENT
 
IN EXERCISE of powers conferred by section 42A of the Constitution of Kenya, section 13 of the National Assembly and Presidential Elections Act and Regulations 8 (3) and 14 of the Presidential and parliamentary Elections Regulations, the Interim Independent Electoral commission gives notice that:

  1. An election is to be held of a member to serve in the National Assembly for South Mugirango Constituency.
  2. Each political party wishing to participate in the by-elections must finalize the nominations of its candidate on or before the 9th may, 2010.
  3. The days for The nomination of the candidate for the parliamentary by-elections will be on 17th and 18th May, 2010, and nomination papers may be collected and delivered by the candidates to the Returning Officer of the said constituency between the hours of eight o’clock in the morning and one o’clock in the afternoon and between the hours of two o’clock and four o’clock in the afternoon of the days.
  4. If the parliamentary elections are contested, the poll will take place on the 10th June, 2010.

Dated the 24th March, 2010.

A.I. HASSAN,
Chairman,
Interim Independent Electoral Commission.

NOTES:

  1. The attention of candidates and persons subscribing nomination papers is drawn to the provision of Part IV of the Presidential and Parliamentary Elections Regulations (Cap. 7. Sub. Leg.)
  2. A person guilty of an election offence will be liable to the penalties imposed by the Election Offences Act (Cap. 66) and to the disqualifications imposed by the National Assembly and Presidential Elections Act (Cap. 7)

GAZETTE NOTICE NO. 3211
THE CONSTITUTION OF KENYA
THE NATIONAL ASSEMBLY AND PRESIDENTIAL
ELECTIONS ACT
(Cap. 7)
THE PRESIDENTIAL AND PARLIAMENTARY ELECTIONS REGULATIONS

APPOINTMENT OF RETURNING AND DEPUTY RETURNING OFFICER

IN EXERCISE of the powers conferred by section 41A of the Constitution of Kenya, section 3 of the National Assembly and Presidential Elections Act and regulation 3 (1) of the Presidential and Parliamentary Elections Regulations, the Interim Independent Electoral Commission appoints the persons specified in the second column to be Returning Officer and Deputy Returning Officer for the constituency specified in the first column of the schedule.

SCHEDULE

Constituency                            Returning Officer
South Mugirango                    Bonventure O. Obongoya
                                                Deputy Returning Officer
Jacob Mengo Mokua
Dated the 24th March, 2010.

A.I. Hassan,
Chairman,
Interim Independent Electoral Commission.

Gazette Notice Vol  CXII No 34  Dated April 1,2010

GAZETTE NOTICE NO. 3216
THE STATE CORPORATIONS ACT (Cap. 446)
THE CATERING AND TOURISM DEVELOPMENT LEVY
TRUSTEES

APPOINTMENT

IN EXERCISE of the powers conferred by section 6 (1) (e) of the State Corporations Act, the minister for Tourism appoints

Martin Ole Kamwaro,
Taufiq Salim Mohammed,

To be Board members of the Catering and Tourism Development Levy Trustee, for a period of three (3) years, with effect from 19th April, 2010.

Dated the 25th March, 2010.

N.B. BALALA,
Minister for Tourism

GAZETTE NOTICE NO. 3217
THE STATE CORPORATIONS ACT (Cap. 446)
THE KENYA UTALII COLLEGE

APPOINTMENT

IN EXERCISE of the powers conferred by section 6 (1) (e) of the State Corporations Act, the Minister for Tourism appoints-

Mariam M.Khamis,
Gershon M. Misumi,
Titus Kangangi,

to be Board members of the Kenya Utalii College, for a period of three (3) years, with effect from 18th April, 2010.

Dated the 23rd March, 2010.

N.M. BALALA
Minister for Tourism

GAZETTE NOTICE NO. 3218
THE STATE CORPORATIONS ACT (Cap. 446)
THE KENYA TOURIST DEVELOPMENT CORPORATION

APPOINTMENT

IN EXERCISE of the powers conferred by section  6 (1) (e) of  the State Corporations Act, the minister for Tourism appoints-

Abdulalim Swaleh,
George Abungu,
Hilda Mawanda (Ms.),
Abdo Mohamed Bahajj
Yusuf Miriguh,
Anthony Getembu (Dr.),
Abdullahi Ibrahim Ali (Dr.),

To be Board members of the Kenya Tourist Development Corporation, for a period of three (3) years, with effect from 17th April, 2010.

Dated the 29th March, 2010.

N.M. BALALA
Minister for Tourism

GAZETTE NOTICE NO. 3219
CRIMINAL PROCEDURE CODE(Cap 75)
APPOINTMENT OF PUBLIC PROSECUTORS

IN EXERCISE of the powers conferred by section 85 (2) of the Criminal Procedure Code, and pursuant to section 260 of the Local Government Act (Cap. 265), the Attorney-General appoints-

Sanya Alpha Kennedy,
Nyanaro Charles Onywoki,

to be public prosecutors for the purposes of all cases arising under the Local Government Act, or under any by-law made by the Municipal Council of Nakuru, whether under that Act or otherwise.

Dated the 26th March, 2010.

S.A WAKO
Attorney General

GAZETTE NOTICE NO. 3220
THE LAW OF SUCCESSION ACT
(Cap. 160)

APPOINTMENT

IN EXERCISE of the powers conferred by section 47 of the Law of Succession Act, the Chief Justice appoints:

Fred Nyakundi            Principal Magistrate                Makueni
Anne W. Mwangi       Senior Resident Magistrate     Kithimani
Henry Nyakweba        Senior Resident Magistrate     Kilungu
Ben Mararo                 Senior Resident Magistrate     Tawa

to represent the High Court for the purposes of that section, with effect from 1st April, 2010.

Dated the 16th March, 2010.

J.E. GICHERU,
Chief Justice

GAZETTE NOTICE NO. 3221
THE CHILDREN ACT
(No. 8 of 2001)

APPOINTMENT

IN EXERCISE of the powers conferred by section 73 (d) (ii) of the Children Act (No. 8 of 2001), the Chief Justice appoints-

Charles Obulutsa                     Principal Magistrate                Kangundo
Johnstone M. Munguti            Senior Resident Magistrate     Machakos
Henry Nyakweba                    Senior Resident Magistrate     Kilungu
Ben Mararo                             Senior Resident Magistrate     Tawa

to preside over cases involving children in respect of Eastern Province, with effect from 1st April, 2010.

Dated the 16th March, 2010.

J.E. GICHERU,
Chief Justice


GAZETTE NOTICE NO.3222
THE CHILDREN ACT
(No. 8 of 2001)
APPOINTMENT

IN EXERCISE of the powers conferred by section 73 (d) (ii) of the Children Act (No. 8 of 2001), the Chief Justice appoints-

Nathan Shiundu                      Senior Resident Magistrate                 Eldoret
Jacinta Atieno Orwa               Resident Magistrate                            Eldoret

To preside over cases involving children in respect of Rift Valley Province, with effect from 1st April, 2010.

Dated the 16th March, 2010.

J.E. GICHERU,
Chief Justice

GAZETTE NOTICE NO. 3188
THE ENVIRONMENTAL MANAGEMENT AND
CO-ORDINATION ACT(No. 8 of 1999)
THE NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY
ENVIRONMENTAL IMPACT ASSESSMENT STUDY REPORT
FOR THE PROPOSED RESIDENTIAL HOUSING DEVELOPMENT ON PLOT NO. 6640/KAPUTIEI NORTH KAJIADO DISTRICT

INVITATION OF PUBLIC COMMENTS

PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environment Management Authority (NEMA) has received an environmental impact assessment study report for the implementation of the proposed development of residential houses.

 

The proposed project will comprise construction of 121 four and three residential houses and other related facilities and will be contained in a 10 acres piece of land. The project location is on Plot No. 6640/Kaputiei-North/Kajiado District.

The project anticipates the impacts and mitigation measures set out in the gazette.

The full report of the proposed project is available for inspection during working hours at:

  1. Director- General, the National Environment Management Authority (NEMA), Kapiti Road, off Mombasa Road, P.O Box 67839-00200, Nairobi.
  2. Permanent Secretary, Ministry of Environment and Mineral Resources, N.H.I.F, Community, P.O Box 30521,Nairobi.
  3. Provincial Director of Environment, Nairobi Province.
  4. District Environment Office, Kajiado District.

The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the approval process of the project.

A.M. KARIUKI,
For Director- General,
National Environment Management Authority

GAZETTE NOTICE NO. 3189
THE ENVIRONMENTAL MANAGEMENT AND
CO-ORDINATION ACT (No. 8 of 1999)
THE NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY
ENVIRONMENTAL IMPACT ASSESSMENT STUDY REPORT
FOR THE PROPOSED RESIDENTIAL HOUSING DEVELOPMENT ON PLOT NO. 6639/KAPUTIEI NORTH KAJIADO DISTRICT

INVITATION OF PUBLIC COMMENTS

PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environment Management Authority (NEMA) has received an environmental impact assessment study report for the implementation of the proposed residential housing development.

The proposed project will comprise construction of 121 residential units of different size ranging from three to four bedroom units, complete with associated facilities. The project location is on Plot No. 6640/Kaputiei-North/Kajiado District.

The project anticipates the impacts and mitigation measures set out in the gazette.

The full report of the proposed project is available for inspection during working hours at:

  1. Director- General, the National Environment Management Authority (NEMA), Kapiti Road, off Mombasa Road, P.O Box 67839-00200, Nairobi
  2. Permanent Secretary, Ministry of Environment and Mineral Resources, N.H.I.F, Community, P.O Box 30521,Nairobi.
  3. Provincial Director of Environment, Nairobi Province.
  4. District Environment Office, Kajiado District.

The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the approval process of the project.

A.M. KARIUKI,
For Director- General,
National Environment Management Authority

GAZETTE NOTICE NO. 3190
THE ENVIRONMENTAL MANAGEMENT AND
CO-ORDINATION ACT(No. 8 of 1999)
THE NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY
ENVIRONMENTAL IMPACT ASSESSMENT STUDY REPORT
FOR THE PROPOSED RELOCATION OF A PRINTING INDUSTRY ON L.R. NO. 209/10804 OFF OLD MOMBASA ROAD

INVITATION OF PUBLIC COMMENTS

PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environment Management Authority (NEMA) has received an environmental impact assessment study report for the proposed label printing industry.

The proposed development involves refurbishment of an already existing building comprising of godowns and the mazzannie floor. The new development aims at providing quality offices for the management and staff and a production/printing section unit, to maximise on full utilization of the plot.

The proposed project is located on L.R. No. 209/10804, Old Mombasa Road – Nairobi. It is situated off Old Mombasa road via North Airport Road.

The project anticipates the impacts and mitigation measures set out in the gazette.

The full report of the proposed project is available for inspection during working hours at:

  1. Director- General, the National Environment Management Authority (NEMA), Kapiti Road, off Mombasa Road, P.O Box 67839-00200, Nairobi
  2. Permanent Secretary, Ministry of Environment and Mineral Resources, N.H.I.F, Community, P.O Box 30521,Nairobi.
  3. Provincial Director of Environment, Nairobi Province.
  4. District Environment Office, Nairobi East District.

The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the approval process of the project.

B.M. LANGWEN
For Director- General,
National Environment Management Authority

GAZETTE NOTICE NO 3191
THE ENVIRONMENTAL MANAGEMENT AND
CO-ORDINATION ACT (No. 8 of 1999)
THE NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY
ENVIRONMENTAL IMPACT ASSESSMENT STUDY REPORT
FOR THE PROPOSED KENYA AIRWAYS STAFF HOUSING STAFF HOUSING AT EMBAKASI VILLAGE NAIROBI ON L.R. NO. 9042/18, L.R. NO. 9042/229 AND L.R. NO. 9042/230

INVITATION OF PUBLIC COMMENTS

PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environment Management Authority (NEMA) has received an environmental impact assessment study report for the implementation of the proposed Kenya Airways Staff Housing Project.

The proposed Housing project involves the construction of affordable residential dwellings in the middle-income segment. It covers one hundred and thirty units and the accompanying basic residential amenities including car park bay, waste disposal sites and greenery. The project will be located on L.R. No 9042/18, L.R. No 9042/229 and L.R. No 9042/230. The proposed site is approximately 2.6699 ha.

The project anticipates the impacts and mitigation measures set out in the gazette.

The full report of the proposed project is available for inspection during working hours at:

  1. Director- General, the National Environment Management Authority (NEMA), Kapiti Road, off Mombasa Road, P.O Box 67839-00200, Nairobi
  2. Permanent Secretary, Ministry of Environment and Mineral Resources, N.H.I.F, Community, P.O Box 30521,Nairobi.
  3. Provincial Director of Environment, Nairobi Province.
  4. District Environment Office, Nairobi East District.

The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the approval process of the project.

B.M. LANGWEN,
for Director- General,
National Environment Management Authority

SUPPLEMENT NO. 15
Legislative Supplement
LEGAL NOTICE NO.
35- The Interim Independent Constitutional Dispute Resolution Court (Practice and Procedure) Rules, 2010.

SUPPLEMENT No. 16
Legislative Supplement
LEGAL NOTICE NO.
36- The Persons with Disabilities (Income Tax Deductions and Exemptions) Order, 2010
37- The National Museums and heritage Act confirmation of Sites and Monuments

SUPPLEMENT No. 17
LEGAL NOTICE NO.
38- The Certified Public Secretaries (Application of Practicing Certificates) Forms and Fees) (Amendments) (No. 2) Regulations, 2009.
39- The certified Public Secretaries (Application for Registration) Forms and Fees) (Amendment) (No. 2) Regulations, 2009.

 


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