University of Nairobi v Songa Ogonda Associates [2020] eKLR Case Summary

Court
High Court of Kenya at Nairobi, Milimani Law Courts, Commercial and Tax Division
Category
Civil
Judge(s)
F. Tuiyott
Judgment Date
October 14, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3

Case Brief: University of Nairobi v Songa Ogonda Associates [2020] eKLR


1. Case Information:
- Name of the Case: University of Nairobi v. Songa Ogonda Associates
- Case Number: Miscellaneous Application No. 24 of 2019
- Court: High Court of Kenya at Nairobi, Milimani Law Courts, Commercial & Tax Division
- Date Delivered: 14th October 2020
- Category of Law: Civil
- Judge(s): F. Tuiyott
- Country: Kenya

2. Questions Presented:
The central legal issues before the court include whether the enforcement proceedings of the arbitral award should proceed or be stayed pending the outcome of the University of Nairobi's appeal regarding the interpretation of Section 35(3) of the Arbitration Act, and whether the application to set aside the arbitral award was time-barred.

3. Facts of the Case:
The dispute arises from an arbitral award dated 24th November 2017, made in arbitration between the University of Nairobi (the applicant/respondent) and Songa Ogonda Associates (the respondent/applicant). The University sought to set aside the arbitral award in a separate application (Nairobi Miscellaneous Cause No. E089 of 2019) but faced a preliminary objection which led to the striking out of its application on the grounds that it was time-barred under Section 35 of the Arbitration Act. This ruling was contested by the University, which subsequently obtained leave to appeal from the Court of Appeal.

4. Procedural History:
The case began with the University of Nairobi seeking to set aside the arbitral award, leading to the filing of E089 of 2019. The preliminary objection raised by Songa Ogonda Associates was upheld by the High Court, resulting in the striking out of the University’s application. This decision was appealed, and the Court of Appeal granted leave for the appeal, emphasizing the importance of the jurisprudential issue regarding the interpretation of Section 35(3) of the Arbitration Act. Meanwhile, the enforcement proceedings were initiated, leading to the present application.

5. Analysis:
- Rules: The court primarily considered Section 35 of the Arbitration Act, which outlines the grounds upon which an arbitral award may be set aside, including time limitations for such applications.
- Case Law: The court referenced the proceedings in E083 of 2019, where similar issues of timeliness regarding setting aside applications were adjudicated, establishing a precedent for the current matter.
- Application: The court reasoned that since the Court of Appeal had acknowledged the significance of the issues regarding Section 35(3) and the potential for the University to be denied access to justice, it would be prudent to stay the enforcement proceedings until the appeal was resolved. The court aimed to prevent unnecessary judicial resources from being expended on a matter that might be rendered moot by the appellate court's decision.

6. Conclusion:
The court ruled to stay the enforcement proceedings of the arbitral award pending the determination of the University of Nairobi’s appeal regarding the setting aside of the award. This decision underscores the importance of ensuring that parties have the opportunity to fully litigate significant legal questions before the enforcement of potentially contentious arbitral awards.

7. Dissent:
There were no dissenting opinions noted in the ruling, as the decision was delivered by a single judge.

8. Summary:
The High Court of Kenya decided to stay the enforcement of the arbitral award pending the outcome of the University of Nairobi's appeal concerning the timeliness of its application to set aside the award. This ruling highlights the court's commitment to judicial efficiency and the fair administration of justice, particularly in cases involving complex procedural questions within arbitration law.

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