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JudgmentWILLIAM HOLDEN WILDLIFE FOUNDATION VS MOUNT KENYA GAME RANCH LIMITED10 min read

WILLIAM HOLDEN WILDLIFE FOUNDATION VS MOUNT KENYA GAME RANCH LIMITED

Environment and Land Court at Nyeri Environment and Land Court · · MUGO KAMAU, J


R U L I N G

  1. Before the court is an Application filed under Notice of Motion dated 28th January 2025, in which the Defendant/Applicant seeks the following orders:
  2. Spent.
  3. Pending the hearing and determination of this application, this Honourable Court be pleased to suspend the time within which the Defendant is to file the statement of defence in response to this suit commenced by the Plaint dated 18th October 2024.
  4. This Honourable Court be pleased to order that the matter herein be referred to Arbitration for hearing and determination as agreed by the parties herein under Clause 10 of the Agreement for the sale of shares in Mount Kenya Game ranch dated 11th December 2013.
  5. All the proceedings in this suit be stayed pending the determination of the Arbitral proceedings and/or until further orders of this Honourable Court.
  6. In the alternative to prayer (4) above, the Plaint dated 18th October 2024 be struck out for being an abuse of the court process.
  7. The Defendant/Applicant filed an affidavit in support of this Application sworn by Philippe Cauviere, the Director, seeking suspension of the time within which she should file a Statement of Defence in response to the Plaint dated 18.10.2024.  The Defendant deposes that the reason for the said Application is to have the matter referred to Arbitration as provided for under Clause 10 of the Agreement for Sale of Shares dated 11.12.2013.
  8. She further prayed that pending the determination of the Arbitration proceedings, all the proceedings in this suit should be stayed.  In the alternative, the Defendant prays that this suit be struck out for the same is an abuse of the court process.
  9. In the Affidavit in Reply to the above Application, sworn on 7.2.2025 by Stefanie Powers, a Director of the Plaintiff/Respondent, the Plaintiff depones that the Application is fatally and incurably defective in that the Defendant has already entered appearance contrary to Section 6 of the Arbitration Act and Rule 2 of the Arbitration Rules Legal Notice 58 of 1997 and has filed the Application by way of Motion instead of through a Chamber Summons. 
  10. She also deposes that there is no dispute between the parties herein as transfer from the Defendant/Applicant of the parcel I.R 23624 to the Plaintiff/Respondent  was done on 9th July 2014 and the only reason that the Plaintiff has filed this suit is because the original Title is yet to be surrendered by the Applicant to facilitate the processing and registration of the subject suit land.
  11. The Plaintiff’s Director also claims that the Plaintiff/Respondent was not a party to the Agreement in issue and that the suit property herein was excluded in the Agreement of 11.12.2012. 
  12. She further states that the Defendant was given leave to enter appearance in this case on 17.12.2024 and file Trial Bundle of Documents within 15 days from that date but thereafter on 29.1.2025 the Defendant filed Notice of Change of Advocates instead in disobedience to the court Order.
  13. The Plaintiff/Respondent therefore expresses that this Application is a delaying tactic since there is nothing to arbitrate, the transfer process of the property already having commenced prior to the execution of the said Agreement dated 11.12.2013, which Agreement specifically excluded the suit property and that it is only meant to delay justice.

Defendant/Applicant’s submissions

  1. Counsel for the Defendant/Applicant submitted that the subject Agreement dated 11th December 2013 forms part of the Plaintiff’s documents and provides for an Arbitration clause.
  2. Sections 2 and 6 of the Arbitration Act CAP 94 of 1995 were quoted and counsel submitted that even though Rule 2 of the Arbitration rules provides that the Application be made by way of summons, the same does not invalidate this Application, by dint of Section 72 of the Interpretation and General Provisions Act CAP 2 and Article 159 of the Constitution.
  3. Counsel cited and relied upon the authority in the case of Meshack Kibunja Kaburi & 3 Others v. Kirubi Kamau & 5 others where it was found that where parties’ contract to resolve disputes through Arbitration, the courts are obliged to give effect to that agreement.
  4. Submitting that the Plaintiff’s suit revolves around Land Reference Number 10766/3, Counsel stated that the same cannot be determined in exclusion of the agreement in question, which intended Arbitration to be the dispute resolution mechanism.

The Plaintiff/Respondent’s submissions

  1. Counsel for the Plaintiff/Respondent submitted that they approached this Court because the Defendant has declined to release the mother Title I.R 23624 for purposes of procuring registration of the suit property, LR.10776/3.
  2. It was highlighted that the Applicant has filed this Application by way Notice of Motion instead of Chamber Summons Application as provided by Section 6 of the Arbitration Act.
  3. Further, that the Application has been filed after the Defendant/Applicant has entered appearance vide Memorandum of Appearance dated 16th December 2024.
  4. They relied on the authorities of Scope Telamatics International Sales Limited v. Stoic Company Limited& another (2017)KECA 545(KLR) and Oilfields Engineering and Supplies Limited v. Zakhem International Construction Ltd & another(2023)KEHC 19881(KLR), submitting that the Applicant has fallen short of the statutory strictures that behooves it to follow when dealing with a matter under the Arbitration Act and its rules and that the Application is not properly before this Court.
  5. It was further submitted that the Plaintiff/Respondent was not party to the agreement dated 11.12.2013, as the parties thereto are the Defendant/Applicant and Havacourt Holdings and the shareholders of the Defendant on the other. Thus, that the doctrine of privity of contract excludes the Plaintiff/Respondent, and they quoted the cases of Aineah Liluyani Njirah v. Aga Khan Health Services(2013) KECA 481(KLR) and Bharminder Singh Osahan v. Helicopters International Limited(2021)KEHC 5015(KLR) and urged the court to dismiss the instant Application.

Analysis and determination

  1. The first issue to be addressed is that the Plaintiff/Respondent has raised contention with the fact that the Applicant/Defendant has filed this Application by way of Notice of Motion, instead of a Chamber Summons as required by Rule 2 the Arbitration Rules Legal Notice of 1997, and is thus fatally detective. The aforesaid Rule 2 provides that:

“Applications under sections 6 and 7 of the Act shall be made by summons in the suit.”

  1. In an Application before the Court of Appeal, brought by way of Notice of Motion instead of Chamber Summons, the case of Njoroge & Another v Njoroge & Another (Civil Application E106 of 2021) [2021] KECA 258 (KLR) (3 December 2021) (Ruling) Nambuye JA gave grace to the Applicant and found as follows:

“The above default on the part of the Applicant will not however per se disentitle the Applicant the right to have their Application considered on its own merits. The default is curable in law not only under the inherent power of the court and the overriding objective principles of the court but also under the now crystallized non-technicality principle in the delivery of justice enshrined in Article 159(2)(d) of the Constitution.”

  1. Similarly, Majanja J in the case of Were (As legal representative of Peter Ouma Onyango - Deceased) v Karlsson (Arbitration Cause E015 of 2023) [2023] KEHC 21553 (KLR) (Commercial and Tax) (2 August 2023) (Ruling) noted as follows:

“It is also worth noting that when the Civil Procedure Rules were revised and enacted in 2010, they did away with Chamber Summons and all applications are now made by Notice of Motion. Of course, the Rules which were enacted in 1997 have not caught up with this development and to insist that an application is fatal merely on the ground that it can only be brought by summons and not a motion when matters are now heard online would amount to elevating a matter of procedure and form to a fetish.”

  1. In the interest of justice and fulfilment of Article 159 of the Constitution of Kenya, 2010 instructing the Courts to not have undue regard to procedural technicalities, as well as the overriding objective of the Court, the instant Application can be heard and determined on merit as drafted.
  2. The Defendant/Applicant prays that this matter be referred to Arbitration as per Clause 10 of the Agreement dated 11th December 2014 annexed to their affidavit in support of the Application. The said agreement reads as follows at Clause 10:

“Save as may be hereinbefore otherwise specifically provided all questions hereafter in dispute between the parties hereto not mutually agreed between the parties hereto shall be referred to Arbitration by a single Arbitrator…..”

  1. The Arbitration Act CAP 49 provides as follows at section 6(1) and (2):

“A court before which proceedings are brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than the time when that party enters appearance or otherwise acknowledges the claim against which the stay of proceedings is sought, stay the proceedings and refer the parties to arbitration unless it finds—

  1. that the arbitration agreement is null and void, inoperative or incapable of being performed; or
  2. that there is not in fact any dispute between the parties with regard to the matters agreed to be referred to arbitration. (2) Proceedings before the court shall not be continued after an application under subsection (1) has been made and the matter remains undetermined.
  3. The Section thus envisions that the Applicant shall enter appearance but shall file the Application soon after before filing their response to the claim, which has been done in this case. The Respondent’s contention that the Applicant should not have entered appearance has no basis, as a party cannot be heard by the Court without being properly on record.
  4. To understand the nature of the instant Application, it is imperative for us to go back to the main claim. The suit herein was instituted by the Plaintiff, who is a wildlife and environment conservation foundation. They aver that the Defendant, a limited liability company, is the registered proprietor of I.R 23624, that is LR 10776.
  5. The Plaintiff claims that they have been in physical continuous occupation of the suit property, LR 10776/3 for 4 decades. The Defendant as the lessor entered into an agreement to cause to be transferred the suit land vide agreement dated 9th July 2014.
  6. However, the Plaintiff avers that the original Title Deed, I.R 23624 has not been released/surrendered by the Defendant to facilitate the registration of the said conveyance.
  7. They also aver that during the sale of the Defendant’s shares vide agreement dated 11th December 2013, the suit property was not included as part of the Defendant’s assets. The claim is therefore aimed at compelling the Defendant to release the mother Title and to facilitate registration of the suit property LR 10776/3 to the Plaintiff’s name.
  8. However, the court notes that the said agreement that the Applicant/Defendant is referring to dated 11th December 2013 is an agreement for the sale of shares in Mount Kenya Game Ranch Limited, the Defendant herein and not the agreement for sale and transfer of the suit property which the Plaintiff seeks to have registered in her name.
  9. The aforesaid agreement lists the immovable properties of the Defendant at part 1 of the second schedule, excluding the suit property herein in the introduction, stating that the said property is in the process of registration in favour of the Plaintiff. Thus, the suit property herein is not the subject of the agreement that the Applicant wishes to refer to Arbitration.
  10. The court further notes that the parties to the aforesaid agreement for the sale of the Defendant’s shares are the Defendant/Applicant herein as Donald Hunt, Iris Bredeinbend Hunt and Stefanie Powers as the vendors on one part, and Havacourt Holdings Limited on the other as the purchaser. This means that the parties herein are not parties to the said agreement save for Stefanie Powers, a Director of the Plaintiff/Respondent.
  11. Annexed to the Respondent’s Replying Affidavit is a transfer form dated 9th July 2014, relating to the transfer of the suit property from the Defendant to the Plaintiff herein, but this is not part of the subject matter of the agreement for the sale of the Defendant’s shares dated 11th December 2013.
  12. The Court of Appeal in the case of Galaxy Paints Company Ltd V Falcon Guards Ltd [2000]eKLR held that issues for determination flow from pleadings, and that the case was against the 2nd Respondent and not Claimant. The Learned Judges of Appeal in the above quoted case found that:

“It is trite law, and the provisions of O.XIV of the Civil Procedure Rules, are clear that issues for determination in a suit generally flow from the pleadings, and unless pleadings are amended in accordance with the provisions of the Civil Procedure Rules, the trial court, by dint of the provisions of O.XX rule 4 of the aforesaid rules, may only pronounce judgment on the issues arising from the pleadings or such issue as the parties have framed for the court's determination.

In Gandy v. Caspair [1956]EACA 139 it was held that unless the pleadings are amended, parties must be confined to their pleadings. Otherwise, to decide against a party on matters which do not come within the issues arising from the dispute as pleaded clearly amounts to an error on the face of the record.”

  1. The orders sought in the Application dated 28th January 2025 therefore are incapable of being issued since the subject matter of the suit, LR 10776/3 does not form part of the contract dated 11th December 2013 that the Applicant wishes to enforce. The Application by the Defendant dated 28th January 2025 stands dismissed with costs. The Defendant is granted leave to file her Defence within 15 days form the delivery of this Ruling if she so wishes.  

Judgment Dated, Signed and Delivered at Nyeri this 25th day of July, 2025.

MUGO KAMAU

JUDGE


    WILLIAM HOLDEN WILDLIFE FOUNDATION VS MOUNT KENYA GAME RANCH LIMITED WILLIAM HOLDEN WILDLIFE FOUNDATION VS MOUNT KENYA GAME RANCH LIMITED