[2008] KEHC 373 (KLR)
The court found that the parties had failed to agree on the appointment of an arbitrator as required by their arbitration agreement and the Arbitration Act. The respondent's preliminary objection, which sought to delay the arbitration until a monetary claim was satisfied, was deemed to be a tactic to delay the...
Source-derived case information.
- Citation
- [2008] KEHC 373 (KLR)
- Parties
- Plaintiff: Maru Piling & Geotechnical Contractors Ltd; Defendant: Zakhem Construction (K) Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 44 of 2006
- Procedural Posture
- Civil Case / Ruling on Notice of Motion for Appointment of Arbitrator
- Outcome
- application allowed
- Legal Topics
- Arbitration Agreement, Appointment of Arbitrator, Stay of Proceedings, Domestic Arbitration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Maru Piling & Geotechnical Contractors Ltd
Plaintiff
Zakhem Construction (K) Ltd
Defendant
Procedural Posture
Civil Case / Ruling on Notice of Motion for Appointment of Arbitrator
Legal Issues
- 1 Whether the court should order the Chartered Institute of Arbitrators (Kenya Chapter) to appoint an arbitrator to determine the dispute.
- 2 Whether the respondent's preliminary objection and submissions to delay arbitration are valid.
- 3 Whether the prior court order referring the matter to arbitration precludes further court intervention.
Ratio Decidendi
The court found that the parties had failed to agree on the appointment of an arbitrator as required by their arbitration agreement and the Arbitration Act. The respondent's preliminary objection, which sought to delay the arbitration until a monetary claim was satisfied, was deemed to be a tactic to delay the resolution of the dispute and not supported by the arbitration framework. The court held that, to avoid undue delay and in accordance with the arbitration clause, it was appropriate to order the Chartered Institute of Arbitrators (Kenya Chapter) to appoint an arbitrator within 30 days. The court overruled the respondent's objections and granted the orders sought by the applicant,...
Court Disposition
application allowed
Orders
- The Chartered Institute of Arbitrators (Kenya Chapter) is ordered to appoint an arbitrator to hear and determine the dispute within 30 days from the date of this ruling.
- Costs awarded to the applicant.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (MILIMANI COMMERCIAL COURTS)
Civil Case 44 of 2006
MARU PILING & GEOTECHINCAL CONTRACTORS LTD………… PLAINTIFF
VERSUS
ZAKHEM CONSTRUCTION (K) LTD………………….........………..DEFENDANT
RULING
Notice of Motion dated 02. 04. 2008.
Orders sought:
1. Orders issued on 26th October 2007 be lifted for purpose of this application.
2. Order to issue to Chartered Institute of Arbitrators (Kenya Charter) do appoint an arbitrator to her and determine the dispute between the parties herein.
On 27. 10. 2007 this Court, (Justice Lesiit) stayed these proceedings and referred this dispute to arbitration. The result is that this court no longer has jurisdiction to deal with this matter. However, for purpose of this application, the order is lifted by this application. The Applicant states that the parties have not yet agreed on an arbitrator. The applicant has nominated Prof. Githu Muigai and Respondent Mr. Norman Mururi.
The Applicant is seeking order of the court to order the Chartered Institute of Arbitrators (Kenya Chapter) to appoint an arbitrator. Clause 21. 2 requires that disputes shall be settled in accordance with Arbitration Act Laws of Kenya. Therefore, the provisions shall on the appointment of an arbitrator must be complied with.
I have read the Replying Affidavit and Preliminary Objections raised by the Respondent. I have also read the Ruling of this Court referring the dispute to arbitration. It is to be noted that no appeal has been filed against that decision. I have noted that the Respondent is claiming Kshs.1,315,799 /= as a condition to be met before the matter proceeds to arbitration. It is to be noted further that there is considerable delay since the Court Order on 26. 10. 2007.
This is a domestic arbitration and it would be unduly delayed if the matter was to be dealt with as suggested by the Respondent.
It is my view that the Respondent interest is to delay the matter so as to avoid determination of the dispute. I overrule the Preliminary Objection and Submissions of the Respondent. I allow application and do order that the Institution of Chartered Arbitrator Kenya Chapter do proceed and appoint the arbitrator to hear and determine this dispute within next 30 days from todate.
It is so ordered. Costs to the Applicant.
DATED this 21st day of November, 2008.
JOYCE N. KHAMINWA
JUDGE