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Moi University v. Vishva Bulders Limited

(2010) JELR 98971 (CA)

Court of Appeal  •  Civil Appeal 296 of 2004  •  18 Feb 2010  •  Kenya

Coram
Riaga Samuel Cornelius Omolo, Emmanuel Okello O'Kubasu, Erastus Mwaniki Githinji

Judgement

JUDGMENT OF THE COURT

This is an appeal from the ruling of the superior court (Omondi Tunya, J) delivered at Eldoret on 16th October, 2002, in which the learned Judge granted an application for summary judgment against the appellant herein. The matter arises out of a building contract.

The respondent herein (as the plaintiff in the superior court) filed a suit against the appellant (as the defendant in the superior court) seeking judgment for Shs.347,157,533.70/- plus interest and costs of the suit. The initial plaint was filed in the High Court of Kenya at Eldoret on 15th March 1999. The appellant filed a defence on 22nd November, 1999 in which the claim was denied and asked for the dismissal of the suit. Paragraph 9 of that defence stated:-

“Without prejudice to paragraphs 5, 6, 7 and 8 of the plaint, the defendant avers that this suit is prematurely before this Court as the contract between the plaintiff and the defendant provides for arbitration in case of any dispute between the par…

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