[2023] KEHC 2672 (KLR)
The court found that the applicant established a manifest conflict of interest and potential bias on the part of the arbitrator, Eng Howard A M’Mayi, arising from his undisclosed advocate-client relationship with the respondent’s counsel during the pendency of the arbitration. The respondent conceded to the...
Source-derived case information.
- Citation
- [2023] KEHC 2672 (KLR)
- Parties
- Applicant: Alyas Living Limited; Respondent: Trident Architects International Limited; Interested Party: Howard A M’Mayi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application E783 of 2022
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Remove Arbitrator and Related Orders
- Outcome
- Application for removal of arbitrator allowed; proceedings to commence afresh before a new arbitrator; issue of arbitrator's fees deferred pending his response.
- Judges
- DAS Majanja
- Legal Topics
- Arbitrator Removal, Conflict of Interest, Arbitration Procedure, Arbitrator Fees
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alyas Living Limited
Applicant
Trident Architects International Limited
Respondent
Howard A M’Mayi
Interested Party
Procedural Posture
Miscellaneous Application / Ruling on Application to Remove Arbitrator and Related Orders
Legal Issues
- 1 Whether the arbitrator should be removed due to conflict of interest and alleged bias.
- 2 Whether the arbitral proceedings should commence de novo before a new arbitrator.
- 3 Whether the arbitrator is entitled to any fees or expenses after removal.
Ratio Decidendi
The court found that the applicant established a manifest conflict of interest and potential bias on the part of the arbitrator, Eng Howard A M’Mayi, arising from his undisclosed advocate-client relationship with the respondent’s counsel during the pendency of the arbitration. The respondent conceded to the application, agreeing to terminate the arbitral proceedings and commence afresh before a new arbitrator. The only outstanding issue was the arbitrator’s entitlement to fees and expenses. The court held that, pursuant to sections 14(4) and 14(7) of the Arbitration Act, the arbitrator must be given an opportunity to respond to the allegations and to state his position regarding fees and...
Court Disposition
Application for removal of arbitrator allowed; proceedings to commence afresh before a new arbitrator; issue of arbitrator's fees deferred pending his response.
Orders
- The appointment of Eng Howard A M’Mayi as arbitrator is revoked and he is removed from acting as sole arbitrator in the arbitration between the applicant and respondent.
- The arbitral proceedings shall commence de novo before another arbitrator to be appointed by the Chairman of the Chartered Institute of Arbitrators.
Full Case Text
Judgment text and source record
23 paragraphs
Alyas Living Limited v Trident Architects International Limited; M’Mayi (Interested Party) (Miscellaneous Application E783 of 2022) [2023] KEHC 2672 (KLR) (Commercial and Tax) (13 March 2023) (Ruling)
Neutral citation: [2023] KEHC 2672 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)
Commercial and Tax
Miscellaneous Application E783 of 2022
DAS Majanja, J
March 13, 2023
Between
Alyas Living Limited
Applicant
and
Trident Architects International Limited
Respondent
and
Howard A M’Mayi
Interested Party
Ruling
1. The applicant has moved the court by the notice of motion dated November 1, 2023 under sections 13 and 14 of the Arbitration Act, 1995 seeking orders, inter alia, that Eng Howard A M’mayi be removed from acting as the sole arbitrator in the arbitration between the applicant and the respondent and his appointment be revoked and that the arbitral proceeding commence de novo before another arbitrator to be appointed by the Chairman of the Chartered Institute of Arbitrators. The applicant also seeks an order that the Arbitrator is not entitled to any fees since the acts complained of are self-inflicted.
2. The application is supported by the affidavit of Ramzan Alyas sworn on April 1, 2022. The thrust of the deposition is that the Arbitrator had during the pendency of the proceedings appointed the respondent’s counsel to act for him in an undisclosed election petition. That since there is advocate-client relationship between the Arbitrator and counsel for the respondent, the Arbitrator is manifestly conflicted and biased.
3. When the application came up for directions on March 7, 2023, the counsel for the respondent conceded to the application. In effect the respondent agreed to terminate the arbitral proceedings and to start the matter afresh before a difference arbitrator. The only issue remaining is the arbitrator’s fees and expenses. Under section 14(3) of the Arbitration Act the court is empowered to make orders as to the arbitrator fees and or expenses on the following terms:14(7) Where an arbitrator is removed by the High Court under this section, the court may make such order as it thinks fit with respect to his entitlement (if any) to fees or expenses or the repayment of any fees or expenses already paid.
4. Under section 14(4) of the Arbitration Act, an Arbitrator who has been challenged has the right to appear and be heard on the application. Since the only issue remaining concerns the Arbitrator’s entitlement to fees, I direct the applicant to serve the application and this ruling on the Arbitrator to enable him respond not only to the allegations against him but also state his position regarding the fees and expenses.
DATED AND DELIVERED AT NAIROBI THIS 13TH DAY OF MARCH 2023. D. S. MAJANJAJUDGECourt Assistant: Mr M. OnyangoMr Shisanya instructed by Shisanya and Company Advocates for the ApplicantMs Ndugire instructed by Amadi and Amadi Advocates for the Respondent.