1. I have considered the applications dated 6th March 2024 and 27th May 2024. The court notes from the outset that neither of the applications are opposed. However, this court scheduled the application dated 27th May 2024 to be heard first. The application dated 6th March 2024 seeks an order directing the parities to conduct arbitration at the Nairobi Centre for International Arbitration (NCIA) rather than at the International Chamber of Commerce (ICC) primarily on the basis that the ICC proceedings are too costly, while the latter application seeks to strike out the application dated 6th March 2024 on the basis that the court is functus officio and because the present issue is res judicata.
2. On 30th November 2022, Majanja, J. issued a ruling referring the present matter to arbitration. In the said ruling at paragraph 12, his Lordship dealt with the Plaintiff’s argument that the dispute resolution mechanism is too costly for the plaintiff. At para 13, in relation to the said issue, the court stated:
“It is trite that parties should always be held to their bargain that should only be departed from in a special and exceptional case. The Court should carry out the intention of the parties and enforce the agreement made by them in accordance with the principle that a contractual undertaking should be honoured unless there is strong reason for not keeping them bound by their agreement (see Areva T & D India Lmited v Priority Electrical Engineers & Another NRB CA Civil Appeal No. 103 of 2011 [2012] eKLR and United India Insurance Co Ltd v East African Underwriters (Kenya) Ltd [1985] KLR 898).
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They have not produced any evidence to demonstrate how such an arbitration would be costly and how they would be unable to meet the said costs. In any event, the 2nd Defendant is amenable to having the arbitration proceedings in Kenya which negates part of the argument that the arbitration proceedings will be costly.”
3. Based on the above, it is evident to me that this issue concerning the cost of the arbitration proceedings with the venue in Nairobi, and pursuant to the ICC institutional rules, but with the seat of arbitration in Netherlands is res judicata. The issue was raised before his Lordship and was resolved in the terms stated above. This court may not sit on appeal of that decision, and it ought not re write the contract between the parties.
4. It is evident to me that the present matter was referred to arbitration on 30th November, 2022 and all court proceedings were stayed pending the said reference.
5. To my mind that is where the matter remains, and this court has no jurisdiction to award the reliefs sought by the applicant seeking to refer the matter to the NCIA.
6. The application dated 6th March 2024 is accordingly stuck out with costs.
7. The application dated 27th May, 2024 is with merit and the same is allowed with costs.
8. The file is marked as closed.