Safari Plaza Limited v Total Kenya Limited [2023] KEHC 25488 (KLR)

Safari Plaza Limited v Total Kenya Limited (Civil Suit 229 of 2018) [2023] KEHC 25488 (KLR) (Commercial and Tax) (20 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25488 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Civil Suit 229 of 2018

A Mabeya, J

November 20, 2023

Between

Safari Plaza Limited

Plaintiff

and

Total Kenya Limited

Defendant

Ruling

1. This is a ruling on the applicant’s motion on notice dated 17/10/2023. The same was brought, inter alia, under orders 50 of the Civil Procedure Rules and sections 1A, 1B and 3A of the Civil Procedure Act. It sought the setting aside of the order made on 3/4/2023 dismissing the suit for want of prosecution and to reinstate the orders of Makau J made on 1/8/2018.

2. The same was supported by the affidavit of Mohamed Rabe sworn on 17/10/2023. It was averred that the suit was filed on 7/7/2018 and the matter referred to arbitration. That the arbitration was concluded on 12/09/2023. The however, the applicant realized that the suit was improperly dismissed for want of prosecution yet no step was required to be taken as the matter was pending arbitration.

3. That the failure to respond to the notice to show cause was out of the indolence and oversight of the applicant’s previous advocates. That the applicant needed to apply for stay of the award in this particular court file. Thus is imperiled by the dismissal of the suit. That the applicant would be greatly prejudiced if the suit was not reinstated.

4. The application was opposed vide grounds of opposition dated 31/10/2023. It was contended that the suit having been instituted pursuant to section 7 of the Arbitration Act. It was incapable of being reinstated. That the suit dissipated the moment the interim measure of protection was dispensed. The cases of Safaricom Limited v Ocean View Beach Hotel Ltd & 2others [2010] eKLR, Iris Properties Ltd &another v Nairobi City Council [2002] eKLR and Coast Apparel EPZ Ltd v Mtwapa EPZ Ltd &anor [2017] eKLR were relied on in support of that contention.

5. I have considered the rival contestations and the authorities relied on. There is no dispute that suit was commenced and pursuant to the provisions of section 7 of the Arbitration Act. The prayers in the plaint dated 7/6/2018 is clear on that.6. Section 7 of the Arbitration Act No. 4 of 1995 provides: -7(1)It is not incompatible with an arbitration agreement to a party, to request from the High Court, before or during arbitral proceedings, an interim measure of protection for the high court to grant that measure.….”

7. In the present case, it is clear that in the plaint, what the applicant sought was the injunction pending reference to arbitration. It would seem that the interim measure of protection was granted and then the matter was then referred to arbitration. The suit then remained in limbo.

8. In my view what the suit does is to commence the proceedings to enable the main dispute resolution process of arbitration to be kick started. Once the interim measure of protection is dispensed with, the suit becomes moot. No further or other proceedings need be undertaken in that suit save the ones that are in tandem with the provisions of the aforesaid section 7.

9. In the present case, the arbitral proceedings have already been concluded. Upon conclusion, the other provisions of the Arbitration Act, to wit sections 35 and 36 come into play. That is, application for either setting aside the Award or to seek the recognition of the Award and enforce the same as a decree of this court.

10. In view of the foregoing it is clear that the applicant’s relief lies either under section 35 or 36 of the Arbitration Act. If it is aggrieved by the outcome of the arbitral proceedings, the proper procedure is to proceed under section 35 of the Arbitration Act under a Miscellaneous Application for appropriate orders under that section and not under this moot suit.

11. Accordingly, I find the application dated 17/10/2023 to be without merit and dismiss the same with costs.It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 20TH DAY OF NOVEMBER, 2023. A. MABEYA, FCI ArbJUDGE