BY SAM ALFAN.
The High Court has dismissed an application by Royal Media Service (RMS) owner S.K. Macharia and his wife Purity Macharia seeking a bench of three judges to determine a dispute over shareholding of insurance firm Directline.
Justice Chacha Mwita dismissed the application by Macharia, dealing the tycoon a blow after asking for the file to be sent to Chief Justice Martha Koome for appointment of a bench to hear the case.
Macharia’s and Royal Credit Ltd wanted the dispute to be handled by more than one judge.
“Consequently, the applications for certification of empanelment is dismissed. The request for interim relief is declined,” ruled the court.
Judge Mwita said in the ruling the application does not satisfy the threshold raising a substantial question of law to warrant the file being sent to the Chief Justice.
“The issues raised , if anything, are normal legal disputes that that can be determined without necessarily empaneling a bench of more judges,” ruled Judge Mwita.
The Judge further added that issues raised in the case are civil and criminal and may not be heard by one bench since since the jurisdiction in courts criminal and civil division are different.
“Similarly , the court is alive to the fact that judicial resources must be properly utilized with a view to resolving the disputes without a delay,” added Judge Mwita while declining to forward the file to the CJ.
The court also dismissed application by Sureinvest company, Stenny Investment, Triad Network Ltd , AKM investment Ltd and Janus ltd seeking adoption and enforcement of of the first partial award.
The judge said granting interim orders is not appropriate at this stage where arbitral award has been made adding that the court’s duty is to consider an application for recognition an enforcement.
“There would be no justification to issue interim relief before the award is recognized and adopted for purposes of enforcement. It would be proper for application for recognition and enforcement to be heard and bring the matter to final conclusion so that parties can know the outcome , this their next course of action ,” ruled Judge Chacha.
Sureinvest company, Stenny Investment, Triad Network Ltd , AKM investment Ltd and Janus ltd had filed the application seeking interim orders for enforcement of the first partial award published on 11th of May last year as a judgement decree pending hearing and determination of the application.
In the same application, the companies also sought interim delivery of books, documents and other books of the company.
The companies had opposed SK Macharia and his wife’s application seeking for empanelling on judges of uneven number to hear the application.
Stenny Investment opposed the application by SK Macharia saying it was malicious, frivolous , vexatious and abuse of court process and is a calculated move to delay the conclusion of the matter.
The company further said the application was defective seeking to merge both criminal and commercial proceedings to be heard together.
SK Macharia and his wife had opposed the application for partial award enforcement adding that award in unenforceable as it conflict public policy in terms of section 35(2)(b) (ii) of the arbitration Act.
“This is because the award purports to enforce memorandum and articles of association which is illegal contract because it permitted admissions of Sureinvest company and Triad Network Ltd into membership of the company.
