Tabitha Nduta Nguru & another v Ganza Limited & 2 others [2021] KEELC 1794 (KLR)
The bottom line
#A Kenyan court ruled that if you want a dispute sent to arbitration, you must raise it when you first appear in the case—not two years later.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the grounds raised by the 1st Defendant/Objector qualify as a Preliminary Objection under the Mukisa Biscuit test
- 2.Whether the Notice of Preliminary Objection on jurisdiction based on the arbitration clause is merited
Key legal issues
#Whether the objection qualified as a proper preliminary objection
Yes, to the extent it raised a pure question of the court's jurisdiction, which does not require ascertainment of facts
The court applied the Mukisa Biscuit test: a preliminary objection is a pure point of law argued on the assumption that the facts pleaded are correct. Jurisdiction is a point of law that may be raised summarily.
Whether the preliminary objection based on the arbitration clause was merited
No; the objection was filed almost two years after entry of appearance and after filing pleadings, contrary to Section 6(1) of the Arbitration Act
Section 6(1) requires an application for stay to be made not later than entry of appearance. The 1st Defendant appeared on 16th April 2018, filed a Replying Affidavit and written submissions, then raised the objection on 3rd March 2020, taking procedural steps that acknowledged the court's jurisdiction. The Court of Appeal's position in Mt. Kenya University was applied.
Legal principles established
#- An application for stay and referral to arbitration under Section 6(1) of the Arbitration Act must be made not later than the time the party enters appearance, and no procedural step may be taken before it
- A party that takes steps in the proceedings is deemed to have acknowledged the court's jurisdiction
Court orders
#- 1.The Preliminary Objection dated 3rd March 2020 by the 1st Defendant/Objector is dismissed
- 2.Costs of the Preliminary Objection to the Plaintiff/Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil suit jurisdiction; application of Section 6(1) of the Arbitration Act
Relief refused
#Referral of the dispute to arbitration and dismissal of the suit for want of jurisdiction
The application under Section 6(1) of the Arbitration Act was made long after entry of appearance and after taking procedural steps
Costs
Costs of the Preliminary Objection to the Plaintiff/Respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
the Court finds that the Preliminary Objection dated 3rd March 2020 by the 1st Defendant/ Objector is not merited and the same is dismissed with costs to the Plaintiff/ Respondent
Jurisdiction is everything. Without it, a court has no power to make one more step
the law obligated the appellant to file the application seeking reference to arbitration simultaneously with the entry of appearance and thereafter take no further procedural steps in the matter
Issues in the judgment
#The date of the sale agreement is inconsistently stated - the pleading and arbitration clause reference agreements dated 2014 but submissions refer to a cause of action pegged on a Sale Agreement executed in 2015
The 1st Defendant is variously described as having entered appearance for the 1st & 2nd Defendants and the case name of Mt. Kenya University's counterpart appears variously as 'Step Holding', 'Step Up Holdfing (K) Ltd'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tabitha Nduta Nguru & another v Ganza Limited & 2 others [2021] KEELC 1794 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1794/eng@2021-09-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.