https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12777

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **COMMERCIAL AND TAX DIVISION** **MISC. COMM. APPLICATION NO. E1058 OF 2025** **BETWEEN** **JOB & MICHAEL UFALME LIMITED………………………….…….….APPLICANT** **AND** **SWITCH TV LIMITED....................................................................1ST RESPONDENT** **KANANU KINYA MUTEA……………………………………..…2ND RESPONDENT** **RULING** **Introduction and Background** 1. The Applicant and the 1st Respondent are currently involved in arbitration proceedings that are being presided over by the 2nd Respondent (“the Arbitrator”). The Applicant has approached the court by way of the Notice of Motion dated 24th October 2025 made under **sections 13(3), 14(3), and 39** of the ***Arbitration Act*** and **Articles 10, 47, 50 and 159** of the ***Constitution*** seeking inter alia to set aside the Arbitrator's decision refusing to recuse herself, an order for her removal and/or disqualification from the arbitration proceedings and an order to stay and/or nullify the proceedings conducted so far. 2. The application is supported by grounds on its face and the affidavits of the Applicant’s director, Michael Muthama sworn on 24th October 2025 and 5th December 2025. It is opposed by the Respondent through the replying affidavit of its Head of Production and Technology, Kibisu Mulanda sworn 10th November 2025 and by the Arbitrator through her affidavit sworn on 13th November 2025. The application was canvassed by way of written submissions which I have considered together with the pleadings and I will be making relevant references to them in my analysis and determination below. **Analysis and Determination** 1. From the parties’ submissions, the court is being called to determine whether there are sufficient grounds for the recusal of the Arbitrator and whether the Applicant has brought this application in good faith.In making this determination, it is not lost that the court’s intervention in ongoing arbitration proceedings is limited as **section 10** of the ***Arbitration Act*** provides that ‘*Except as provided in this Act, no court shall intervene in matters governed by this Act’.* As stated, the Applicant’s application is grounded on inter alia **sections 13(3) and 14(3)** of the ***Arbitration Act*** which provide as follows: ***13. Grounds for challenge*** *(1)…………* *(2)…………* *(3) An arbitrator may be challenged only if circumstances exist that give rise to justifiable doubts as to his impartiality and independence, or if he does not possess qualifications agreed to by the parties or if he is physically or mentally incapable of conducting the proceedings or there are justifiable doubts as to his capacity to do so.* *(4)……..* ***14. Challenge procedure*** *(1)….* *(2)….* *(3)* *If a challenge under agreed procedure or under subsection (2) is unsuccessful, the challenging party may, within 30 days after being notified of the decision to reject the challenge, apply to the High Court to determine the matter.* *…….* 1. A party that seeks to challenge an arbitrator under **section 13(3**), that is, owing to circumstances that give rise to justifiable doubts as to their impartiality and independence, or if they does not possess qualifications agreed to by the parties or if they are physically or mentally incapable of conducting the proceedings or there are justifiable doubts as to their capacity to do so, can only lodge that challenge first, before the Arbitrator, before approaching the court (see **Nairobi Properties Limited v Africa Medicity Limited & another [2023] KEHC 2741 (KLR)**]. This is provided for by **section 14(3)** of the ***Arbitration Act*** which provides that ‘*If a challenge under agreed procedure or under subsection (2) is unsuccessful, the challenging party may, within 30 days after being notified of the decision to reject the challenge, apply to the High Court to determine the matter.’* 2. It is common ground that the Applicant made an application for the Arbitrator’s recusal by email on 17th October 2025 that it grounded on **sections 13 and 14** of the ***Arbitration Act*** on the basis of a manifest pattern of unlawful conduct of the arbitral proceedings, unfair treatment and glaring bias towards it. The Arbitrator declined to recuse herself in a ruling that she delivered on 22nd October 2025 and it is thereafter that the Applicant invoked the court’s jurisdiction pursuant to **section 14(3)** of the ***Arbitration Act.*** It is therefore my finding that the present application is properly before the court and that the court has jurisdiction to determine the same. 3. The Applicant contends that the Arbitrator has demonstrated a consistent pattern of bias and partiality in favor of the Respondent thereby violating the Applicant's right to a fair hearing. The Applicant avers that on 9th October 2025, its key witness was unavailable and the hearing was rescheduled for 17th October 2025 but on 16th October 2025, the government declared 17th October a public holiday to honor the late former Prime Minister, Rt. Hon. Raila Odinga. 4. The Applicant states that the Arbitrator's proposal to proceed with the hearing on this officially gazetted public holiday, despite strong objections from the Applicant, was unfair, prejudicial and in disregard of the law and public policy. That the Applicant's counsel informed the Arbitrator that its witness could not attend because he was involved in the preparations for the state funeral. The Applicant contends that the Arbitrator's subsequent request for evidence to confirm the witness’ involvement in the burial preparations was unreasonable and constituted procedural impropriety, as the public holiday was a matter of public record. 5. The Applicant claims the Arbitrator unilaterally fixed the next hearing for 27th October 2025, stating it would proceed "without fail” and that this was done without proper regard for the parties' autonomy or their counsels' availability. The Applicant's lead counsel, Dr. Adrian Kamotho, claims he was scheduled to attend a Judicial Service Commission forum on that date. The Applicant claims that the Arbitrator's conduct, such as directing emails primarily to the Respondent’s counsel and exhibiting a consistent pattern of prioritizing the Respondent’s case, gives rise to justifiable doubts as to her independence and impartiality, as defined by **section 13(3)** of the ***Arbitration Act***. 6. In response, the Respondent depones that the Applicant has failed to provide any cogent evidence of bias or unfair treatment by the Arbitrator and that all procedural steps taken by the Arbitrator were transparent, consensual and in accordance with the ***Arbitration Act***. That the Applicant has admitted to being indebted to the Respondent in its filed Response to the Statement of Claim and even requested a structured payment plan and that the hearing date of 9th October 2025, was agreed upon by both parties during a compliance meeting. 7. The Respondent states that it was the Applicant's counsel who unilaterally stated its witness would be unavailable for the entire month without providing any reason and when the Applicant requested a postponement, the Arbitrator did not force the matter. Instead, she gave the Applicant the option to choose a new date between October 15th , 16th , or 17th for the witness to testify and the Applicant chose October 17th . That when October 17th was declared a public holiday, the Arbitrator asked for the parties' views to which the Applicant objected and the Arbitrator adjourned the hearing to October 27th, rather than proceeding against their wishes. 8. The Respondent states that the Arbitrator's request for evidence of the witness's involvement in the late Hon. Odinga’s state funeral was reasonable and procedural and that the Applicant has not shown how any decision made by the Arbitrator was biased or preferential to the Respondent. That all decisions were made in consultation with both parties. The Respondent points out that the Applicant's sole witness claimed to be unavailable for a 30-minute virtual hearing for the entire month but was available to participate in the state funeral preparations, swear a 33-page affidavit for the present application. That this is a textbook case of using frivolous applications to delay a matter where the debt is already admitted and after hearing from both parties, the Arbitrator delivered a ruling on 22nd October 2025, dismissing the Applicant's challenge and refusing to recuse herself, as no evidence of bias was presented. The Respondent urges the court to dismiss the application with costs, stating that the same is a waste of the court's time and an attempt to undermine the integrity of the arbitral process. 9. On her part, the Arbitrator depones that she is ready, willing and able to continue with her duties in accordance with the ***Arbitration Act*** and she defends her conduct of the proceedings by referencing her prior ruling on the matter. She states that she was formally appointed as the Sole Arbitrator by the Chartered Institute of Arbitrators (Kenya Branch). She confirms that she was served with this court’s proceedings and the stay order and in compliance with the same, the hearing scheduled for 27th October 2025, was suspended pending this court's determination. She states that her ruling outlines the full procedural history and her reasons for dismissing the Applicant's earlier challenge to her impartiality and she affirms that she is ready, willing and able to fulfill the terms of her appointment and continue with the arbitration if the court does not remove her. 10. The Court of Appeal in **Tunoi & another v Judicial Service Commission & another [2016] KECA 530 (KLR)** cited with approval the House of Lords’decisionin***R v. Gough* [1993] AC 646** which held that that the test to be applied in all cases of apparent bias was the same, namely, whether in all the circumstances of the case, there appeared to be a real danger of bias, concerning the member of the tribunal in question so that justice required that the decision should not stand.The test in ***R v. Gough(supra)*** was subsequently adjusted by the House of Lords in ***Porter v. Magill* [2002] 1 All ER 465** when the House of Lords opined that the words “a real danger” in the test served no useful purpose and accordingly held that*:* *“[T]he question is whether the fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.”* 1. The Court of Appeal in ***Tunoi (supra)*** thus held as follows: *41. In determining the existence or otherwise of bias, the test to be applied is that of a fair-minded and informed observer who will adopt a balanced approach and will neither be complacent nor be unduly sensitive or suspicious in determining whether or not there is a real possibility of bias.* *42. In Taylor v. Lawrence [2003] QB 528 at page 548, in which an application was made to reopen an appeal on the ground that the Judge was biased, the Judge having instructed the plaintiffs’ solicitors many years previously the House of Lords in the judgment of Lord Woolf CJ reiterated:* *“... we believe the modest adjustment in R V. Gough is called for which* *makes it plain that it is, in effect, no different from the test applied in most of the commonwealth and in Scotland.”* *“The Court must first ascertain all the circumstances which have a bearing on the suggestion that the Judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased.”* 1. As submitted by the Respondent and the Arbitrator, this court (Gikonyo J.,) in **Chania Gardens Limited v Gilbi Construction Company Limited & another [2015] KEHC 6202 (KLR)**held as follows in respect of a challenge on the ground of bias: *‘The grounds for removal of an arbitrator are set out in section 13(3) of the Arbitration Act, but the one which is relevant to this application is…only if circumstances exist that give rise to justifiable doubts as to his impartiality and independence... The words ‘’only if’’ and ‘’justifiable doubts’’ are important in a decision under section 13(3) of the Arbitration Act. The words suggest the test is stringent and objective in two respects: a) the court must find that circumstances exist, and those circumstances are not merely believed to exist; and b) those circumstances are justifiable; this goes beyond saying that a party has lost confidence in the arbitrator’s impartiality into more cogent proof of actual bias or prejudice. The test for bias or prejudice must be that there is real danger that the arbitrator is biased, and in deciding whether bias has been established, the court personifies the reasonable man and considers all the material before it to determine whether any reasonable person looking at what the arbitrator has done, will have the impression in the circumstances of the case, that there was real likelihood of bias. But, of course, justifiable doubts as to the impartiality and independence of the arbitrator do not include peripheral or imagined or fanciful issues or mere belief by the applicant.”* 1. I have gone through the pleadings and submissions together with the legal principles governing recusal and bias and I cannot conclude that the Arbitrator was biased in her conduct. As stated, courts have established a high threshold for removing an arbitrator and the test is not whether a party subjectively feels aggrieved, but whether a fair-minded and informed observer would conclude there is a real possibility of bias. The test is stringent and objective and the circumstances giving rise to the challenge must be justifiable and go beyond peripheral or imagined or fanciful issues or mere belief by the applicant. 2. Whereas the Applicant stated that the Arbitrator acted improperly by insisting on proceeding with the hearing on 17th October 2025, a date gazetted as a public holiday, the annexure by the Applicant (*MM-3*) shows the Arbitrator did not insist on proceeding as her email explicitly stated *"I would like us to proceed with the hearing for the hour, unless there are strong objections to this. Any views?"* I find that this was a procedural inquiry and not an edict and I am in agreement with the Arbitrator’s submission that in arbitration, parties have autonomy and can agree to proceed outside of regular court hours or on holidays and the Arbitrator was fulfilling her duty to ensure the expeditious conduct of the proceedings as set out in **section 19A** of the ***Arbitration Act***. Most importantly, when the Applicant objected, the Arbitrator adjourned the hearing and she did not force the Applicant to proceed. 3. Further, while the Applicant stated that the Arbitrator's request for evidence of the witness's participation in the state funeral preparations was unreasonable and procedurally unfair, the Applicant's witness had previously declared blanket unavailability for the entire month without providing a reason. When the Applicant then used a specific, newly arising reason of the funeral to request an adjournment, I find that it was reasonable and procedurally proper for the Arbitrator to request some form of corroboration. This was a case management decision to assess the legitimacy of an adjournment request and it cannot be termed as an act of bias but an attempt to balance the Applicant's request for a delay against the Respondent's right to an expeditious resolution and to prevent potential abuse of the process. 4. The Applicant also stated that the Arbitrator unilaterally imposed the hearing date of 27th October 2025, "without fail" and without consulting the Applicant's counsel, who had a prior commitment. However, the record shows that the 27th was not a unilateral decision but was the date the Applicant itself had previously suggested and agreed to as a fall-back during the compliance meeting as evidenced by the Arbitrator’s email of 8th October 2025 annexed on the Respondent’s deposition as *KM-6*. The Arbitrator simply reverted to this consensually agreed date after the 17th was adjourned. 5. As such, I find that the Arbitrator was not imposing a new, arbitrary date but was reverting to a previously agreed-upon date. The fact that the Applicant's lead counsel had a new, unforeseen commitment on that date, that is, the JSC forum, is an unfortunate circumstance, but it does not demonstrate bias on the part of the Arbitrator. She could not have known of this future commitment at the time the original directions were made. 6. I am also in agreement with the Respondent that the Applicant’s witness’ conduct of being unavailable throughout a month for a 30-minute virtual hearing but available to be involved in state funeral preparations, a major, time-consuming event and to swear a detailed affidavit for this application lends significant weight to the argument that the primary motivation for the challenge is to delay the proceedings, rather than a genuine fear of bias. Indeed, courts are wary of such tactics as was held in **Zadock Furnitures Systems Limited & another v Central Bank of Kenya [2014] KEHC 2163 (KLR)** 7. In the end, The Applicant has failed to provide cogent proof of actual bias or prejudice and I find that the Arbitrator's actions were all procedural, transparent and within her discretion. A fair-minded and informed observer, considering all the facts, would conclude that the Arbitrator was managing the arbitration in a firm but fair manner to ensure a timely resolution, not acting with partiality. **Conclusion and Disposition** 1. For the above reasons, I find that the Applicant’s Notice of Motion dated 24th October 2025 lacks merit and is dismissed with costs to the Respondents. **DATED SIGNED and DELIVERED virtually this 7th DAY OF AUGUST 2026** **............................................................................** **J.W.W. MONGARE** **JUDGE** **IN THE PRESENCE OF** 1. Mr. Ombongi holding brief for Dr. Kamotho for the Applicant. 2. Mr. Okuta for the 1st Respondents. 3. Ms. Mulindi for the 2nd Respondents. 4. Amos - Court Assistant