CM Construction (EA) Limited v Junction Apartments Limited [2022] KEHC 13964 (KLR)

CM Construction (EA) Limited v Junction Apartments Limited (Miscellaneous Civil Application E019 of 2022 & Commercial Case E030 of 2021 (Consolidated)) [2022] KEHC 13964 (KLR) (Civ) (5 October 2022) (Directions)

Neutral citation: [2022] KEHC 13964 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Miscellaneous Civil Application E019 of 2022 & Commercial Case E030 of 2021 (Consolidated)

DO Chepkwony, J

October 5, 2022

IN THE MATTER OF: ARBITRATION ACT, NO.4 OF 1995 AND IN THE MATTER OF: RECOGNITION AND ENFORCEMENT OF AN ARBITRATION AWARD

Between

CM Construction (EA) Limited

Applicant

and

Junction Apartments Limited

Respondent

Directions

1. I have considered the files being HCCOMM ARB No E019 of 2022 and HCCOMMISC No E030 of 2021 in light of the submissions made by respective counsel for the parties therein on September 19, 2022. Whereas M/S Lumulla counsel for the respondent in HCCOMM ARB No E019 of 2022 and applicant in HCCOMMISC No E030 of 2021 sought for the application pending in both suits to be heard and canvassed together, Mr Ochwo counsel for the applicant in HCCOMM ARB NoE019 of 2022, in opposition of M/S Lumulla’s suggestion submitted that the applicants in HCCOMMISC No E030 of 2021 were granted leave to amend their pleadings vide a ruling dated December 10, 2021 but failed to comply hence the application in HCCOMMARB No E019 of 2022 ought to be granted priority and be heard first.

2. I have perused the two pending applications in respective files and established that the notice of motion dated January 13, 2021 pending in HCCOMMISC No E030 of 2021 substantially seeks the setting aside of an arbitral award published on December 14, 2020 and that the parties be ordered to commence the arbitral proceedings before a different arbitrator. The chamber summons application dated February 23, 2022 which is pending under HCCOMM ARB No E019 of 2022 seeks to have adopted as the judgment of this court the same award dated December 14, 2020. It therefore goes without saying that the cause in the two suits is the same and same common questions of law and facts are bound to arise in both suits.

3. Facilitating efficient and expeditious disposal of disputes is a dizzling emblem of our judicial system. Therefore, this court is not only bound to provide a framework for a fair and impartial dispensation of justice for parties in a dispute before it, but also required to do so without conferring any undue advantage upon either party or occasioning any disadvantage towards the other party.

4. Therefore, having read the ruling dated December 10, 2021, it is my view that the said ruling was meant to bar the applicant in HCCOMMISC No E030 of 2021 from being heard unless they amend their pleadings. So far it seems that the applicants therein are comfortable with being heard without such amendments.

5. Having pointed out earlier that both suits have common questions of law and fact, I am of the respectful view that it would be more convenient and efficient to consolidate the applications in the two suits. Even then, the applicant in HCCOMM ARB No E019 of 2022 has not shown what prejudice or undue disadvantage it might suffer if the two pending applications are consolidated and heard together.

6. Consequently, in light of the above discussion, the following orders do issue:-a.That the chamber summons application dated February 23, 2022 pending in HCCOMM ARB E019 of 2022 and notice of motion application dated January 13, 2021 pending in HCCOMMISC E030 of 2021 be consolidated and canvassed together by way of written submissions.b.To avoid duplication of issues, the parties are directed to limit their submissions on the following three (3) issues:-i.Whether the arbitral award dated December 14, 2020 should be set aside, and if so,ii.Whether the parties should be ordered to commence the arbitration before a different arbitrator appointed in consensus of the parties.iii.Whether judgment should be entered in terms of the arbitrator’s award dated December 14, 2022. c.Each party is hereby allowed fourteen (14) days to file written submissions and further leave of seven (7) days to file supplementary submissions upon being served with the other party’s submissions.d.Highlighting on November 23, 2022. It is so ordered.

RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 5THDAY OF OCTOBER, 2022. D. O. CHEPKWONYJUDGEIn the presence of:Mr. Ochwo counsel for ApplicantM/S Diero counsel holding brief for M/S Lumulla counsel for RespondentCourt Assistant - Sakina