Background
1. Before me is a Notice of Motion application dated 10th May, 2023 (the instant application), filed pursuant to the provisions of Sections 1A, 1B & 3A of the Civil Procedure Act, Chapter 21 of the Laws of Kenya, Order 22 Rule 22(1), Order 42 Rules 6(1) & (2), and Order 51 of the Civil Procedure Rules. The applicant seeks two substantive prayers: a temporary injunction or, alternatively, a stay of execution of the ruling delivered on April 28, 2023, pending the hearing and determination of an intended appeal.
2. The application is based on the grounds stated in the motion and is supported by affidavits sworn by SWARNJIT BHURJI, the applicant’s Executive Chairman, on 10th May 2023, and 3rd July 2023. In opposition, the respondent filed a replying affidavit sworn on 22nd May 2023, by PATEL KALYANJI PREMJI, the respondent herein.
3. The respondent also raised a Notice of Preliminary Objection on the same date, arguing that the matter is res judicata since the application has already been considered, and the court allowed the respondent’s application dated April 28, 2023, with costs.
4. The applicant’s case is that the respondent appointed UPSTATE KENYA AUCTIONEERS to execute this court’s decree issued on January 26, 2021, for Kshs. 15,176,882.80. Apprehensive that the decree would be executed, the applicant filed an application dated March 23, 2021, seeking, inter alia, a stay of execution pending the hearing and determination of the intended appeal.
5. This application was determined by a ruling delivered on September 23, 2021, where the court granted the applicant an order for stay of execution, conditional upon the applicant depositing half of the decretal sum in a joint interest-earning account in the name of the Advocates on record for both parties.
6. The applicant states that they complied with the directions for security and made several follow-ups for the certified copies of typed proceedings for the purpose of filing the intended appeal. Before the appeal was filed, the respondents filed an application dated May 27, 2022, seeking to discharge the order for stay of execution issued on September 23, 2021.
7. This application was determined by a ruling delivered on April 28, 2023, where the court allowed it as prayed, consequently granting liberty to the respondent to execute the said decree.
8. On that basis, the applicant claims that the respondent had written to SBM Bank Kenya Limited and has already withdrawn half of the decretal amount, being Kshs. 5,048,431.50, which was held in joint account No. 0052396705001.
9. The applicant averred that the delay in obtaining certified copies of typed proceedings has not been their fault but due to the court’s administrative procedures, considering that the file has been active in court on account of various pending applications.
10. The applicant confirmed that they had since filed a Notice of Appeal dated May 2, 2023, and on June 13, 2023, obtained certified copies of court proceedings, proceeded to prepare a memorandum of appeal, and are in the process of finalizing the Record of Appeal. The applicant pleads with this honorable court that if the orders sought herein are not granted, the intended appeal will be rendered nugatory.
11. The respondent, in response, argues that the present application is similar to that of March 23, 2021, which matters were already determined by this court in the ruling delivered on April 28, 2023. The respondents blame the applicants for inordinate and deliberate delay, intending to stop the respondents from enjoying the fruits of their arbitral award since September 27, 2018.
12. The application and preliminary objection were canvassed by way of written submissions, which were highlighted on November 22, 2023. I shall not regurgitate the contents of the said submissions, but I have considered them and will refer to them in my determination as necessary.
13. For good order, since the preliminary objection goes to the very root of this court’s jurisdiction, it follows that the same must be determined first.
Analysis and determination
Whether the application of May 10, 2023, is res judicata.
14. Section 7 of the Civil Procedure Act provides for the doctrine of res judicata in the following terms: -
“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.”
15. To succeed in their quest to have the instant application dismissed, the respondent must prove to this court that:
i. The issues in the instant application and the previous application of 23rd March 2021, are substantially the same;
ii. The parties in the instant and previous applications are the same;
iii. The issue raised in the instant application was raised previously, heard, and finally determined.
16. It is not in doubt that the parties herein are the same parties in the application dated March 23, 2021, in which the applicant herein sought orders for stay of execution of the decree issued on January 26, 2021, pending the hearing and determination of the intended appeal.
17. It is also not in dispute that the proceedings herein relate to the recognition of an arbitral award against which the applicant intends to appeal. That the respondent applied to the court on 27th May 2022, seeking to set aside the stay orders, which orders were granted in a ruling delivered on 28th April 2023, does not change the fact that no matter which way one looks at the issues herein the substance of all the applications is the grant of stay of execution orders pending appeal.
18. This court rendered itself extensively and with finality on the question, through the impugned ruling. I stated as follows in the said ruling: -
"I have seen the correspondence dated January 29, 2020, February 1, 2021, and December 21, 2021, written by the respondent’s advocates to the Deputy Registrar requesting for the proceedings. With respect, these letters are spaced at intervals of almost 12 months each. The time in between the letters is not explained. I also note that it is only the email of December 21, 2021, that was written after the stay order had been granted.
The previous correspondence had been written prior to the order. Other than the one email of December 2021, there is no more evidence of the ‘numerous emails’ or evidence of the ‘numerous visits’ by the appellant’s advocates to the registry in a bid to follow up the proceedings.
The respondent does not state whether there was any response from the registry for the more than 2 years’ delay in typing the proceedings. In the circumstances, I find that the degree of diligence exercised by the appellant in pursuing the appeal is wanting. This state of affairs may be presumed as a possible apathy to actively pursue the appeal once he had obtained a stay of execution. It is against the interest of justice to allow the appellant/respondent to continue to enjoying stay orders indefinitely to the detriment of the applicant.
19. I would therefore agree with the respondents that the question of stay of execution is one where the court has determined the issue with finality and is therefore functus officio.
The prayer for temporary injunction
20. The next question that arises is whether this court should and can grant the prayer for temporary injunction. This question must be considered against the background of Section 10 of the Arbitration Act, which states as follows:
“Except as provided in this Act, no court shall intervene in matters governed by this Act.”
21. The interpretation of this section has been a subject of immense judicial interpretation. I find quite instructive the decision in Anne Mumbi Hinga versus Victoria Njoki Gathara [2009] eKLR. The Court of Appeal captured the spirit and tenure of section 10 and held as follows:
“We therefore reiterate that there is no right for any court to intervene in the arbitral process or in the award except in the situations specifically set out in the Arbitration Act or as previously agreed in advance by the parties, and similarly there is no right of appeal to the High Court or Court of Appeal against an award except in circumstances set out in Section 39 of the Arbitration Act.”
22. Similarly, in the case of Erad Suppliers & General Contracts Limited v National Cereals and Produce Board No. 636 of 2009, the court cited with approval from the holding of Odunga J as follows:
“However, in light of the provisions of Section 10 of the Arbitration Act, all the provisions, including the Civil Procedure Act and Rules, do not apply to arbitral proceedings because Section 10 of the Arbitration Act makes the Arbitration Act a complete code and Rule 11 of the Arbitration Rules cannot override Section 10 of the Arbitration Act."
Accordingly, I do not have jurisdiction to intervene in any manner not specifically provided for in the Arbitration Act, and that includes entertaining the application seeking to stay proceedings subsequent to the award. It is clear to me that no application of the Civil Procedure Rules would be regarded as appropriate if its effect would be to deny the award finality and speedy enforcement, both of which are the major objectives of arbitration.”
23. The court went ahead to observe that:
“As Odunga J had rightly pointed out in his ruling of February 8, 2012, the Civil Procedure Rules are only applicable to arbitral proceedings as appropriate, and certainly Order 42 of the Civil Procedure Rules is not one of them.”
24. While I note that the issue of stay of execution is no longer before this court, this court however aligns with the pronouncements set out in these authorities. The import of the pronouncements is to re-emphasize the limited (facilitative) role that this court plays in the arbitration arena where parties have distinctly made their intention clear to pursue arbitration as their preferred dispute resolution mechanism.
25. This court can only intervene in the arbitral process with regard to the matters allowed by the Arbitration Act 1995. As the effect of applying Order 40 to the present proceedings would be akin to denying the award finality and speedy enforcement, which are the core objectives of the arbitration process, I am of the view that an order injuncting the enforcement of an arbitration award is not an ideal order that I should grant.
Disposition
28. For these reasons, the application dated 10th May, 2023 is dismissed with costs to the respondent.