[2020] KEHC 6234 (KLR)
The court found that the agreement for sale between the parties contained a valid arbitration clause requiring disputes to be referred to a sole arbitrator agreed upon by both parties. The applicant had attempted to appoint an arbitrator, but the respondent's lack of response led to the nominated arbitrator...
Source-derived case information.
- Citation
- [2020] KEHC 6234 (KLR)
- Parties
- Applicant: Kinyae Kituku Sammy; Respondent: Kencom Sacco Society Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 239 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Appoint Arbitrator
- Outcome
- Application allowed; sole arbitrator appointed.
- Judges
- MM Kasango
- Legal Topics
- Arbitration Clause Enforcement, Appointment of Arbitrator, Contractual Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kinyae Kituku Sammy
Applicant
Kencom Sacco Society Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Appoint Arbitrator
Legal Issues
- 1 Whether the court should appoint a sole arbitrator pursuant to the arbitration clause in the agreement for sale.
- 2 Whether the applicant has satisfied the requirements under the Arbitration Act for court intervention in the appointment process.
Ratio Decidendi
The court found that the agreement for sale between the parties contained a valid arbitration clause requiring disputes to be referred to a sole arbitrator agreed upon by both parties. The applicant had attempted to appoint an arbitrator, but the respondent's lack of response led to the nominated arbitrator declining the appointment. Under section 12(9) of the Arbitration Act, the court is empowered to appoint an arbitrator where parties fail to agree. The court was satisfied that the requirements for court intervention had been met and accordingly appointed Samuel Mbiriri Nderitu as the sole arbitrator to resolve the dispute between the parties.
Court Disposition
Application allowed; sole arbitrator appointed.
Orders
- Samuel Mbiriri Nderitu is appointed as the sole arbitrator to arbitrate the dispute between Kinyae Kituku Sammy and Kencom Sacco Society Limited.
- There is no order as to costs in respect to the Notice of Motion dated 9th July 2019.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
MILIMANI COMMERCIAL & TAX DIVISION
MISCELLANEOUS APPL. NO. 239 OF 2019
KINYAE KITUKU SAMMY...............................................................APPLICANT
VERSUS
KENCOM SACCO SOCIETY LIMITED....................................RESPONDENT
R U L I N G
1. Kinyae Kituku Sammy (Kinyae) prays, by the Notice of Motion dated 9th July 2019 for an order appointing a sole arbitrator to hear and determine the dispute between the parties herein. The arbitration clause is contained in the agreement for sale dated 4th November 2016 between the parties. That clause provides:
29. ARBITRATION CLAUSE
All disputes and questions whatsoever which shall arise between the parties hereto touching the Sale Agreement or the construction or application thereof of any clause or thing herein contained or to the rights or liabilities of any party under this Sale Agreement shall be referred to the decision of a single arbitrator which arbitrator must be agreed by both parties and in accordance with the provisions of the Arbitration Act 1995 or any Act or Acts amending or replacing the same.
2. When a dispute, relating to the performance and completion of the agreement for sale arose and pursuant to the arbitration clause, Kinyae appointed Mr Mbiriri Nderitu to arbitrate over the dispute. That arbitrator however declined his appointment due to the respondent’s non-responsiveness. It is in that background Kinyae has applied to the court to appoint a sole arbitrator.
3. Section 12 (9) of the Arbitration Act provides this court with the power to appoint an arbitrator. Bearing in mind the provisions of that section I am inclined to appoint Samuel Mbiriri Nderitu. I note in his letter of 5th December 2018, Mr Nderitu confirmed that he is competent to take up the appointment of a sole arbitrator.
4. Accordingly, I hereby appoint Samuel Mbiriri Nderitu as the sole arbitrator to arbitrate over the dispute between Kinyae Kituku Sammy and Kencom Sacco Society Limited. There is no order as to costs in respect to the Notice of Motion dated 9th July 2019.
DATED, SIGNED and DELIVERED at NAIROBI this28thday of APRIL,2020.
MARY KASANGO
JUDGE
ORDER
In view of the measures restricting court operations due to the COVID-19 pandemic and in light of the Gazette Notice No 3137 of 17th April 2020 and further parties having been notified of the virtual delivery of this decision, this decision is hereby virtually delivered this 28th day of April, 2020.
MARY KASANGO
JUDGE