[2019] KEHC 9662 (KLR)

[2019] KEHC 9662 (KLR)

The court found that the Sole Arbitrator's visit to the applicant's premises during the pendency of the arbitration, in the absence of the respondent, was contrary to the rules of the Chartered Institute of Arbitrators (Kenya Branch) and created an impression of bias. Although there was no direct evidence of fraud or bribery, the Arbitrator's conduct was sufficient to raise suspicion and undermine confidence in the impartiality of the arbitral process. This conduct, viewed objectively, met the threshold under section 35(2)(vi) of the Arbitration Act for setting aside an arbitral award where the making of the award is affected by undue influence or the appearance thereof. The court...

Citation
[2019] KEHC 9662 (KLR)
Parties
Applicant: Kisumu National Polytechnic; Respondent: Cell ARC System Limited
Court
High Court
Court Station
High Court at Nairobi (Milimani Commercial Courts)
Jurisdiction
Kenya
Judgment Date
28 February 2019
Case Number
Miscellaneous Cause 302 of 2018
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Arbitral Award
Outcome
arbitral award set aside; no order as to costs
Judges
MM Kasango
Legal Topics
Setting Aside Arbitral Award, Arbitrator Bias, Public Policy in Arbitration, Procedural Irregularity
Source Language
English
Alternative Dispute Resolution Commercial and Corporate Setting Aside Arbitral Award Arbitrator Bias Public Policy in Arbitration Procedural Irregularity

Case Brief

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Parties

Kisumu National Polytechnic

Applicant

Cell ARC System Limited

Respondent

Procedural Posture

Miscellaneous Application / Ruling on Application to Set Aside Arbitral Award

Legal Issues

  1. 1 Whether the Sole Arbitrator's conduct created a real likelihood of bias or undue influence warranting setting aside the arbitral award.
  2. 2 Whether the visit by the Arbitrator to the applicant's premises in the absence of the respondent constituted a breach of arbitration rules and public policy.
  3. 3 Whether the arbitral award was affected by fraud, bribery, undue influence, or corruption as per section 35(2)(vi) of the Arbitration Act.

Ratio Decidendi

The court found that the Sole Arbitrator's visit to the applicant's premises during the pendency of the arbitration, in the absence of the respondent, was contrary to the rules of the Chartered Institute of Arbitrators (Kenya Branch) and created an impression of bias. Although there was no direct evidence of fraud or bribery, the Arbitrator's conduct was sufficient to raise suspicion and undermine confidence in the impartiality of the arbitral process. This conduct, viewed objectively, met the threshold under section 35(2)(vi) of the Arbitration Act for setting aside an arbitral award where the making of the award is affected by undue influence or the appearance thereof. The court...

Court Disposition

arbitral award set aside; no order as to costs

Orders

  • The Arbitral Award of the Sole Arbitrator, Mr. Festus Mukunda Litiku dated 4th May 2018 is hereby set aside.
  • Each party shall bear the costs of the Notice of Motion dated 5th July 2018.