ORDER FOR DIRECTIONS REGARDING MISC 546 OF 2016 AND THE PENDING APPLICATIONS IN MISC E089 OF 2023
1. Upon hearing the parties on their oral submissions there are two main issues for directions before the Court. The first relates to the status of the proceedings in Miscellaneous Application No. E546 of 2016 and the status of the interested parties. From the record, it is evident that these proceedings were instituted by Beatper Enterprises Ltd (the decree holder), through an application under Section 6 of the Arbitration Act, seeking to preserve the subject matter pending arbitration.
2. The record further shows that during the pendency of the proceedings, the 1st and 2nd Interested Parties applied to be joined to the proceedings. By its orders issued on 16th December 2017, the Court (Tuiyott, J as he then was), issued the following order:
“The application dated 8th December 2014 for joinder of the proposed interested party is allowed. The ex parte order be extended until taxation of the advocates’/applicants' bill of costs with liberty to apply.”
3. In my view, the joinder of the interested parties was therefore for a specific and limited purpose, to subsist until the taxation of costs. It appears from the record that the bill of costs dated 7th December 2016 was taxed by consent on 10th April 2016. Accordingly, the purpose for which the joinder was granted, that is to safeguard the interests of the interested parties, who had independent claims against Mr. Bapiny (the judgment debtor), was effectively spent.
4. Subsequently, this Court (Mabeya J) allowed an application dated 27th September 2023 reinstating injunctive orders that had previously been lifted following an application by Mr. Bapiny. The orders were issued in favour of the decree holder, Beatpar Enterprises. Having reached that stage, the miscellaneous proceedings had served their purpose. Even without the application by Beatper seeking discharge of the interested parties from the proceedings, it is clear from the record and the language of the court orders that the joinder was time-bound and purpose-specific.
5. As to whether there will be any prejudice to the interested parties to be suffered by having their cause undetermined, I do not think so. Learned Counsel Mr. Onyango has confirmed to this Court that the interested parties have filed applications in Misc. Application No. E089 of 2023 which is where the execution proceedings are ongoing. The applications and any stake or interest that they have will be correctly determined in those proceedings.
6. Accordingly, I take the view that Misc. Application No. E546 of 2016 has run its course and should now be marked as closed particularly noting that the arbitration award has been recognized in other (subsequent) proceedings.
7. The second issue concerns the proposed consolidation of Misc. Application No. 546 OF 2016 with Misc. Application No. E089 of 2023. The interested parties have informed the Court that directions had been issued by Gikonyo J for the consolidation of the two matters. I have perused the record and noted the directions issued by Gikonyo J on 19th February 2025. In my view, the Learned Judge directed that the matter be mentioned before this Court, which was already seized of Misc. Application No. E089 of 2023, for purposes of considering the application for consolidation. The Judge did not in my view, issue any definitive orders for consolidation.
8. I am not persuaded that it was the Learned Judge’s intention to consolidate the matters at that point, particularly in light of the express recognition that Misc. Application No. E089 of 2023 was pending before this Court.
9. Having already found that Misc. Application No. E546 of 2016 has run its course and is now functus, there remains no live issue to be consolidated. Accordingly, Misc. Application No. E546 of 2016 is hereby marked as closed. Misc. Application No. E089 of 2023 remains active for purposes of execution proceedings arising from the arbitral award and its recognition. All the pending applications including the applications for joinder shall be determined on merit in those proceedings.
DATED, SIGNED AND DELIVERED IN NAIROBI
THIS 1st DAY OF JULY 2025.
F. MUGAMBI
JUDGE
1. Upon hearing the parties on their oral submissions there are two main issues for directions before the Court. The first relates to the status of the proceedings in Miscellaneous Application No. E546 of 2016 and the status of the interested parties. From the record, it is evident that these proceedings were instituted by Beatper Enterprises Ltd (the decree holder), through an application under Section 6 of the Arbitration Act, seeking to preserve the subject matter pending arbitration.
2. The record further shows that during the pendency of the proceedings, the 1st and 2nd Interested Parties applied to be joined to the proceedings. By its orders issued on 16th December 2017, the Court (Tuiyott, J as he then was), issued the following order:
“The application dated 8th December 2014 for joinder of the proposed interested party is allowed. The ex parte order be extended until taxation of the advocates’/applicants' bill of costs with liberty to apply.”
3. In my view, the joinder of the interested parties was therefore for a specific and limited purpose, to subsist until the taxation of costs. It appears from the record that the bill of costs dated 7th December 2016 was taxed by consent on 10th April 2016. Accordingly, the purpose for which the joinder was granted, that is to safeguard the interests of the interested parties, who had independent claims against Mr. Bapiny (the judgment debtor), was effectively spent.
4. Subsequently, this Court (Mabeya J) allowed an application dated 27th September 2023 reinstating injunctive orders that had previously been lifted following an application by Mr. Bapiny. The orders were issued in favour of the decree holder, Beatpar Enterprises. Having reached that stage, the miscellaneous proceedings had served their purpose. Even without the application by Beatper seeking discharge of the interested parties from the proceedings, it is clear from the record and the language of the court orders that the joinder was time-bound and purpose-specific.
5. As to whether there will be any prejudice to the interested parties to be suffered by having their cause undetermined, I do not think so. Learned Counsel Mr. Onyango has confirmed to this Court that the interested parties have filed applications in Misc. Application No. E089 of 2023 which is where the execution proceedings are ongoing. The applications and any stake or interest that they have will be correctly determined in those proceedings.
6. Accordingly, I take the view that Misc. Application No. E546 of 2016 has run its course and should now be marked as closed particularly noting that the arbitration award has been recognized in other (subsequent) proceedings.
7. The second issue concerns the proposed consolidation of Misc. Application No. 546 OF 2016 with Misc. Application No. E089 of 2023. The interested parties have informed the Court that directions had been issued by Gikonyo J for the consolidation of the two matters. I have perused the record and noted the directions issued by Gikonyo J on 19th February 2025. In my view, the Learned Judge directed that the matter be mentioned before this Court, which was already seized of Misc. Application No. E089 of 2023, for purposes of considering the application for consolidation. The Judge did not in my view, issue any definitive orders for consolidation.
8. I am not persuaded that it was the Learned Judge’s intention to consolidate the matters at that point, particularly in light of the express recognition that Misc. Application No. E089 of 2023 was pending before this Court.
9. Having already found that Misc. Application No. E546 of 2016 has run its course and is now functus, there remains no live issue to be consolidated. Accordingly, Misc. Application No. E546 of 2016 is hereby marked as closed. Misc. Application No. E089 of 2023 remains active for purposes of execution proceedings arising from the arbitral award and its recognition. All the pending applications including the applications for joinder shall be determined on merit in those proceedings.
DATED, SIGNED AND DELIVERED IN NAIROBI
THIS 1st DAY OF JULY 2025.
F. MUGAMBI
JUDGE