Particulars Of The Vehicle StolenKCC 271B Mitsubishi Canter valued at Kshs 2,000,000/- (insured by Chester Insurance)KCM 814 A Tata Tipper valued at Kshs 7,000,000/- ( insured by the defendant)KCK 987L Tata Tipper valued at Kshs 7,300,000/- ( insured by the defendant)KCM 813 A Tata Tipper valued at Kshs 7,000,000/- ( insured by the defendant)
5.The plaintiff avers that of the four vehicles, KCM 813A was recovered or found abandoned at Ngong Road with no fuel while the remaining three vehicles have never been recovered. The plaintiff lodged a claim for compensation in respect of the following vehicles insured by the defendant:-KCM 814 A Tata Tipper valued at Kshs 7,000,000/-.KCK 987L Tata Tipper valued at Kshs 7,300,000/-
6.Upon service with the plaint and Summons to Enter Appearance, the defendant filed a Memorandum of Appearance under Protest dated August 26, 2020.
7.Concurrently with the Memorandum of Appearance, under Protest, the defendant also filed the Notice of Preliminary Objection and application dated August 26, 2021 which is the subject of this ruling.
8.The defendant listed the following grounds in the Notice of Preliminary Objection;-1.The suit is bad in law and offends the mandatory provisions of Section 11 of the Civil Procedure Act, Cap 21 Laws of Kenya that provides that every suit shall be instituted in the court of the lowest grade competent to try it; the subject matter of the plaintiff’s suit is below Kshs 20,000,000/-.2.The suit is contractually time-bared as the Insurance Policies provide to wit any claims be brought before expiry of 12 months.3.This Honourable court and any court’s jurisdiction is ousted in view of the Arbitration Clause.
9.The defendant seeks the following orders in the application dated August 26, 2021:-1.Spent.2.Spent.3.That this Honourable Court be pleased to refer the suit herein to arbitration as envisaged at Clause 9 of the Insurance Police Documents dated January 13, 2017 and July 12, 2017 which have given rise to the present suit.4.The costs of this application be provided for.
10.The application is supported by the affidavit of the defendant’s Legal Manager Ms Emma Mwangi and is premised on the grounds that :-1.On January 13, 2017, the plaintiff applied for, and the defendant granted an insurance policy in favour of the plaintiff; and executed that Policy Document No 01/COMP/01/0800/4412/2017 dated January 13, 2017.2.On July 12, 2017, the plaintiff took out a comprehensive insurance police with the defendant and executed that Policy document No 01/COMP/01/0800/4591/2017 dated July 12, 2017.3.That both parties herein bound themselves by the said Insurance Policies (hereinafter jointly referred to as ‘Insurance Policies’).4.Clause 9 of the said Insurance Policies provides for mechanisms of resolving disputes arising between the parties, and requires mediation or Arbitration.5.The plaintiff has knowingly filed the instant suit in ignorance of the Dispute Resolution Clause contained in the Insurance Policies and this Honourable Court must not cordon the abuse of the court process demonstrated by the plaintiff herein.6.The Insurance Policies and the said Disputes Resolution Clause remain to be operative, valid and is capable of being performed.7.The dispute between the parties as pleaded by the plaintiff relates to issues arising from the Insurance Policies.8.It is in the interest of just and expeditious resolution of this matter that this application be allowed as prayed and this suit be stayed pending Arbitration.
11.The plaintiff/Respondent opposed the application through the replying affidavit of its director.
12.Parties canvased the application by way of written submissions which I have considered. The main issue for determination is whether this suit should be referred to arbitration.
13.The applicant’s case was that the parties entered into insurance contracts which provided for mechanisms for resolving disputes.
14.The plaintiff, on the other hand, submitted that it filed the instant suit seeking, inter alia, a declaration that Clause 9 of the defendant’s Standard Policy Documents is unlawful and unconstitutional to the extent that it seeks to limit the plaintiff’s right to legal redress. According to the plaintiff, Clause 9 of the defendant’s Standard Policy Document is illegal as it purports to limit the time within which parties can refer the dispute to arbitration to 12 months as opposed to the 6 years limitation period provided for under the Limitation of Actions Act. For this argument the plaintiff cited the decision in Njogu & Company Advocates v National Bank of Kenya Limited where it was held:-
15.It was the plaintiffs case that since is has challenged the validity of the arbitration clause in this suit, it is only the court with the jurisdiction to hear and determine the legality of Clause 9 of the Policy document. I find that the facts of this case are distinguishable from the facts in the above decision.
16.Clause 9 of the Policy document provides as follows:-
18.It is trite that parties are bound by the terms of their contract.
19.In present case, I note that the parties herein agreed to refer any dispute arising between them to mediation and if not finalized within 30 days, to arbitration by an arbitrator appointed within 30 days of the dispute arising.
20.The parties herein entered into the agreement willingly and consciously. They voluntarily agreed to the timelines set for the settlement of the disputes between them and I find that there is nothing illegal in the set timelines.
21.It is trite that under the doctrine of Kompentenze – Kompentenze, the arbitrator is competent to rule on the issue of his own jurisdiction.
22.This court is enjoined by Article 159 (2) of the Constitution 2010 to promote alternative dispute resolution mechanisms such as mediation and arbitration which the respondent is keen on avoiding. The mediation that the respondent allegedly engaged in is not that envisioned on Clause 9. This is the reason this Honourable court is not seized with details of the alleged mediation. The respondent should not be allowed to forum shop.
25.This court should not allow respondent to ignore the contractual steps. A mere allegation that the arbitral agreement is illegal, unconstitutional and or void cannot be sufficient to oust an arbitration agreement.
26.It is my further finding that the plaintiffs cannot blow hot and cold on the provisions of the Insurance Policy that it signed with the defendant. It would appear that on one hand, the plaintiff seeks to enforce the terms of the policy and in the same breath, cherry picks Clause 7 of the Policy and claims that it is null and void.
27.One of the questions that the court has to grapple with is whether contractual time bar clauses are illegal. Courts have taken the position that contractual time bars are in line with the freedom to contract as they ensure that dispute(s) are dealt with swiftly. This allows for greater commercial certainty with parties able to deal and transact without the potential threat of unknown claims. (See the High Court decision in the case of West Mount Investments Limited v Tridev Builders Company Limited  eKLR.)
28.It is clear that the parties herein intended to resolve any arising dispute by use of the alternative dispute resolution, in which case, this court should give effect to this desire as its primary task is to construe the contract and give effect to it. See the case of Pius Kimaiyo Langat v Co-operative Bank f Kenya Limited  eKLR.
30.In the present case, I note that the respondent did not plead fraud, duress or coercion prior to signing the Insurance Policy.Disposition
31.For the reasons I have stated in this ruling, I find that the application dated October 26, 2021 is merited and I therefore allow it as prayed. The costs of the application shall abide the outcome of the arbitration.