KLR WEEKLY e-NEWSLETTER |
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| Issue 099| Newsletter Archive | Thursday 01th April 2010 | |
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ARBITRATION CLAUSE IN A CONTRACT OUSTS COURT’S JURISDICTION “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) 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 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. 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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SPECIAL ISSUE Vol. CXII No. 31 Dated March 26,2010 GAZETTE NOTICE NO. 3210 THE PRESIDENTIAL AND PARLIAMENTARY ELECTIONS ELECTION OF A MEMBER OF PARLIAMENT
Dated the 24th March, 2010. A.I. HASSAN, NOTES:
![]() GAZETTE NOTICE NO. 3211 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 A.I. Hassan, ![]() Gazette Notice Vol CXII No 34 Dated April 1,2010 GAZETTE NOTICE NO. 3216 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, 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, ![]() GAZETTE NOTICE NO. 3217 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, 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 ![]() GAZETTE NOTICE NO. 3218 APPOINTMENT IN EXERCISE of the powers conferred by section 6 (1) (e) of the State Corporations Act, the minister for Tourism appoints- Abdulalim Swaleh, 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 ![]() GAZETTE NOTICE NO. 3219 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, 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 ![]() GAZETTE NOTICE NO. 3220 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 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, ![]() GAZETTE NOTICE NO. 3221 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 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, GAZETTE NOTICE NO.3222 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 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, ![]() GAZETTE NOTICE NO. 3188 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:
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, ![]() GAZETTE NOTICE NO. 3189 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:
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, ![]() GAZETTE NOTICE NO. 3190 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:
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 ![]() GAZETTE NOTICE NO 3191 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:
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, ![]() SUPPLEMENT NO. 15 SUPPLEMENT No. 16 SUPPLEMENT No. 17
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Kenya Law Weekly Issue 099/2010
1 April 2010
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