1.Before the court is the application dated March 18, 2021 brought under rule 3(2) of the Arbitration Rules 1997 and section 35(2) of the Arbitration Act 1995 and all enabling provisions of the law. The application by the 1st defendant seeks the following orders:i.That the plaintiff’s originating summons herein dated September 24, 2020 be struck out for being premised on grounds/questions outside section 35(2) of the Arbitration Act 1995;ii.That the cost of this application be awarded to the 1st defendant.
2.The application is premised on the grounds on the face of it, the supporting affidavit sworn by Nancy Matimu, the Managing Director of the 1st defendant and submissions dated March 7, 2022.
3.The application was opposed through a replying affidavit sworn by Dipak Halal, a Director of the plaintiff company on July 12, 2022. The respondent’s position was that the issues raised in the Originating Summons fell within the scope of section 35 of the Arbitration Act and that the issues were properly before the court in line with section 10 of the Arbitration Act.
4.The respondent averred that the court had the power to determine any issue raised on procedural irregularities within the confines of section 35 of the Act. The respondent faulted the arbitrator for condemning it to paying costs for the application which amount was unfair, excessive and extravagant. Further it was contended that the arbitrator had committed certain acts that were contrary to his functions and obligations and thus was a risk of him being biased.
5.The respondent submitted that the court had the requisite jurisdiction to hear and determine the plaintiffs originating summons. It was submitted that a determination as to whether the grounds enumerated in the originating summons met the threshold of section 35 could only be determined at the hearing of the application. Further counsel submitted that the plaintiff sought the intervention of the court in accordance with the arbitration Act and was therefore properly before the court.
6.I have considered the pleadings and rival submissions by the parties. The main issue for determination is whether the applicant has made out a case for striking out theoriginating summons dated September 24, 2020.
7.Section 35(2) of the Arbitration Act, on which the application rests, provides as follows:
8.In addition to this, the court’s jurisdiction in arbitration proceedings is circumscribed by section 10 of the Arbitration Act which provides that courts interference is limited to only instances where it is expressly provided.
9.Having so stated, there is an abundance of judicial pronouncements on the subject of striking out of pleadings. In the Co-Operative Merchant Bank Ltd. v George Fredrick Wekesa, (Civil Appeal No. 54 of 1999) the Court of Appeal stated that:
11.A cursory look at the impugned originating summons indicates that the plaintiff seeks the determination of certain questions relating to the plaintiff’s application for the termination of the arbitrator’s mandate for inability to perform the functions of his office and/or to his failure to conduct the proceedings properly. The originating Summons challenges the interim award delivered by the arbitrator and also raises allegations of bias.
12.The issues raised by the plaintiff are substantial and would require evidence in proof. The issues would be best dealt with during the determination of the suit and not at this interlocutory stage. It is only fair that the litigant should have an opportunity to have its case decided on merit. The court reiterates that the power to strike out the suit is a drastic step that should be used sparingly.
Determination and orders
13.In conclusion it is my finding that the court’s jurisdiction has been properly invoked by the 1st respondent. The argument that originating summons was premised on grounds outside section 35(2) of the Arbitration Act is not a reason to strike out the pleading at this stage.
14.The application dated March 18, 2021 lacks merit and is therefore dismissed with costs.