[2016] KEHC 964 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CIVIL CASE NO. 5 OF 2016

BRENDA NGII MUIU ………………………………………………………..PLAINTIFF

VERSUS

PETER MWANGI KIMANI T/A ELECTRO

BROTHERS & GENERAL CONTRACTORS …….....………………1ST DEFENDANT

AMACO AFRICA MERCHANT ASSURANCE CO. LTD ….................2ND DEFENDANT

RULING OF THE COURT

1. The Notice of Motion application before the court is dated 3rd October, 2016. The application is filed by the plaintiff pursuant to the provisions of Article 159 2(b) & (e)and 165 3(a)of theConstitution, Section 1A, 3Aand63 (e)of theCivil Procedure Rules, Order 51 Rule 1of theCivil Procedure Rules, and all other enabling Provisions of Law.

2. The application seeks the following orders;

a. That the application be certified as urgent and that the same be heard ex-parte in the first instance.

b. An order of the court that the suit herein be heard by the Court in exercise its original unlimited civil jurisdiction; or in the alternative;

c. The court does appoint any of these Arbitrators who are Quantity Surveyors, as had been prayed for in the Notice of Motion dated 20th June, 2016 namely;

i. QS Kishore Bobby

ii. QS Kairu Bachia

d. That the costs of this application be costs in the cause.

3. The application is premised on the grounds set out therein and is supported by affidavit of the plaintiff sworn on 3rd October, 2016.

4. The application is not opposed. Grounds of Opposition were filed on 24th October, 2016 out of time, and there was no application to admit the same out of time. The respondent’s counsel Mr. Olonde, while submitting against the application, did not seek the leave of the court to admit the Grounds of Opposition out of time. This, despite the fact being brought to his attention by M/S Mbulu counsel for the applicant, who refused to accept service of the Grounds of Opposition in court. I therefore strike out the Grounds of Opposition filed herein on 24th October, 2016.

5. This application follows the ruling of this court delivered on 28th July, 2016 in which the court directed the Chairman/Secretary of the Chartered Institute of Arbitrators to appoint a Quantity Surveyor as an arbitrator herein within fourteen (14) days.

6. For reasons explained in the application and in the Supporting Affidavit, that direction has not been observed, and todate an arbitrator is yet to be appointed. It is therefore in order and within the rights of the applicant to ask this court to appoint an arbitrator. This court is mandated under Article 165(3) (a)and159 2(b)and2(e) to assist the parties to settle their disputes within reasonable time. In any event the application before the court is meant to effect the orders of this court of 28th July, 2016. There being no substantive response or denial of this application, and the same being merited in the opinion of this court, the Notice of Motion application under reference is allowed with orders that;

a. Mr. Kishore Bobby, QS, is hereby appointed by this court as arbitrator herein.

b. The arbitrator shall within seven (7) days inform the court if he shall take the appointment.

c. In the event that Mr. Kishore Bobby for whatever reasons declines the appointment, Mr. Kairu Bachia QS, shall stand appointment as arbitrator herein and the applicant shall notify the arbitrator accordingly.

d. Costs shall be in the cause.

Orders accordingly.

DATED AND DELIVERED AT MACHAKOS THIS 16TH DAY OF NOVEMBER, 2016.

………………………………………

E. OGOLA

JUDGE

In the presence of;

Mr. Mukule holding brief for Koki Mbulu for applicant

Mr. Jaoko holding brief for Odero Olonde for respondent

Court Assistant – Mr. Munyao