https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3236

**** **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NAIROBI** **ELC CASE NO. 27 OF 2019** **MUCHEWA LIMITED …………………………………………… PLAINTIFF** **=VERSUS=** **ADDER COMPANY LIMITED ………………………………… DEFENDANT** **RULING** 1. By a Notice of Motion dated 7th February 2025, brought under Order 46 Rule 2 of the Civil Procedure Rules and Section 12(9) of the Arbitration Act, the Plaintiff/Applicant seeks the following orders: 1. ***THAT this Honourable Court be pleased to appoint an arbitrator or authorize the Chairperson of the Chartered Institute of Arbitrators to appoint an arbitrator in this matter.*** 2. ***THAT the costs of this application be provided for.*** 2. The application is based on the grounds appearing on its face, together with the supporting affidavit of David Chege Thuo, a director of the Plaintiff, sworn on even date. **THE PLAINTIFF/APPLICANT’S CASE** 1. The deponent averred that the parties herein executed a lease agreement on 21st December 2014. He further averred that a dispute arose from the said lease, leading to the filing and hearing of this suit. He stated that on 16th May 2024, Mogeni J. referred the matter to arbitration. 2. He averred that the Plaintiff invited the Defendant to submit to arbitration under clause 4(i) of the lease, but the Defendant did not respond to the request to confirm their proposed arbitrators. Subsequently, the Plaintiff wrote to the President of the Chartered Institute of Arbitrators seeking the appointment of an arbitrator. 3. He stated that in a letter dated 27th November 2024, the President of the Chartered Institute of Arbitrators advised the Plaintiff to seek the Court's assistance to vest the appointing authority in the Chairman of the Chartered Institute of Arbitrators. **THE DEFENDANT/RESPONDENTS’ CASE** 1. The Defendant filed a Preliminary Objection and Grounds of Opposition dated 30th June 2025, in opposition to the application. The Defendant argued that, following the order of Mogeni J. dated 16th May 2024, which referred the matter to arbitration, the Court became functus officio and therefore lacks jurisdiction to determine the application. 2. The Defendant contends that clause 4(i) of the lease agreement dated 21st December 2014 requires that disputes between the parties be referred to arbitration. It was contended that the Court had already pronounced itself in its ruling dated 16th May 2024, a position acknowledged by both parties. The Respondents assert that the suit was closed and that the Court became functus officio from that date. 3. The Defendant argued that the application is fatally defective for offending Order 46(2) of the Civil Procedure Rules which requires that an arbitrator be appointed in a manner agreed upon by the parties. It was further contended that the application is misconceived as the Plaintiff's proper remedy was to seek a review of the arbitration clause with the Defendant, given that several of its provisions were vague and inoperative. It was argued that the Court lacks jurisdiction to redraw the arbitration clause. 4. The Defendant argued that the application contravenes Section 6(2) of the Arbitration Act 1995 and reiterated the contents of its earlier Preliminary Objection and Chamber Summons Application, both dated 26th January 2024. It was contended that the Court should not interfere with the dispute resolution mechanism it had itself determined. In conclusion, the Defendant urged the Court to strike out the application with costs. 5. The application was canvassed by way of written submissions. **THE PLAINTIFF/APPLICANT’S SUBMISSIONS** 1. The Plaintiff filed its submissions dated 8th October 2025. 2. On behalf of the Plaintiff, Counsel submitted that by a letter dated 11th June 2024, the Plaintiff wrote to the Defendant proposing three arbitrators for selection or, alternatively, inviting the Defendant to provide its own list, but the Defendant did not respond. A follow-up letter was thereafter issued on 1st July 2024 seeking confirmation on the proposed arbitrators, which the Defendant again failed to respond to. A further letter was written on 27th November 2024, raising concerns over the frustration caused by the Defendant's inaction. By a letter dated 27th October 2024, the Chartered Institute of Arbitrators advised the Plaintiff to proceed to court for appropriate orders. 3. Counsel submitted that Section 12(9) of the Arbitration Act requires the Court, when appointing an arbitrator, to consider any qualifications specified in the parties' agreement and factors that are likely to ensure the appointment of an independent and impartial arbitrator. Counsel relied on the case of **Rao v Shreeji Chemicals Limited and 3 others (Petition E005 of 2021) [2023] KEHC 24600 (KLR),** where the Court held that judicial intervention at the stage of appointing an arbitrator was justified where the parties had failed to reach a mutual agreement on the arbitral tribunal. 4. Further reliance was placed on **Heritage Consultants Ltd v Permanent Secretary, Ministry of Regional Development [2013] eKLR**, where it was held that Order 46 rule 5(1) of the Civil Procedure Rules grants the Court the authority and jurisdiction to appoint an arbitrator when the parties have been unable to agree, and an application has been made under Section 12 of the Arbitration Act. It was submitted that the provisions of Order 46 of the Civil Procedure Rules apply where the circumstances under Section 12 of the Arbitration Act have not been exhausted. To support this point, Counsel relied on **Everett Aviation (Charter) Limited v Jubilee Insurance Company Limited [2020] eKLR.** 5. Counsel argued that in the present matter, more than 30 days had lapsed since the Plaintiff's initial request without any response or participation from the Defendant, thereby justifying the Court intervention. It was further submitted that clause 4(i) of the lease agreement states that disputes should be resolved by a sole arbitrator in accordance with the Arbitration Act, and that the only omission was the failure to expressly specify an appointing authority, a gap the Court could remedy under Order 46 of the Civil Procedure Rules. 6. Regarding the Defendant's Preliminary Objection, Counsel submitted that the ruling of 16th May 2024 had stayed the matter pending arbitration and had not dismissed the suit. Counsel asserted that the file remained active and that the Plaintiff continued to comply with the Court's order. Counsel contended that the Defendant had misrepresented the effect of the ruling by alleging that the Court was functus officio and that the suit was closed. Counsel further submitted that it was the Defendant who had originally sought a reference to arbitration by its Preliminary Objection dated 26th January 2024, and therefore it was inequitable for the Defendant to frustrate the very process it had itself invoked. 7. In conclusion, Counsel urged the Court to allow the application as prayed. 8. The application was canvassed by way of written submissions. At the time of writing this ruling, the Defendant had not filed its submissions as directed. **ANALYSIS AND DETERMINATION** 1. Having considered the application, the preliminary objection, the grounds of opposition and the Plaintiff’s submissions, the following issues arise for determination: 1. *Whether this Court is functus officio; and* 2. *Whether the Applicant is entitled to the orders sought.* 2. Regarding the first issue, the Plaintiff’s preliminary objection is based on the grounds that the ruling dated 16th May 2024 referred this matter to arbitration, rendering this Court functus officio and depriving it of jurisdiction to entertain this application. 3. The **Black’s Law Dictionary 9th Edition,** defines functus officio as: ***“Having performed his or her office (of an officer or official body) without further authority or legal competence because the duties and functions of the original commission have been fully accomplished.*** 1. The doctrine of *functus officio* was articulated by the Court of Appeal in the case of **Telkom Kenya Limited vs John Ochanda (2014) e KLR** as follows: ***“functus officio is an enduring principle of law that prevents the re-opening of a matter before a court that rendered the final decision thereon.”*** 1. In the case of **Jersey Evening Post Limited v Al Thani (2002) JLR,**which was cited by the Supreme Court in the case of **Raila Odinga & 2 Others Vs Independent Electoral and Boundaries Commission & 3 Others 2013 eKLR,** the Court held that: ***“…A court is functus officio when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only fully concluded, and the court functus when its judgment or order has been perfected. The purpose of the doctrine is to provide finality. Once proceedings are finally concluded, the court cannot review or alter its decision; any challenge to its ruling or adjudication must be taken to a higher court if that right is available…*** 1. Based on the above authorities, which are binding on this Court, it is clear that when a Court has already pronounced itself on a matter, it is deemed to have performed all its duties in the case and it becomes *functus officio.* 2. The record shows that the ruling of 16th May 2024 stayed the proceedings and referred the dispute to arbitration. It did not finally determine the parties' rights on the merits. A reference to arbitration is, by its nature, an interlocutory order; it does not extinguish the Court's supervisory jurisdiction under the Arbitration Act. No arbitral tribunal has been constituted, and no award has been rendered. In the circumstances, it cannot be said that this Court has performed all its duties in this matter. 3. The Defendant argued that the Court lacks jurisdiction to hear and determine the application. It is trite that jurisdiction is everything, and without it, the Court cannot proceed. In **Owners of Motor Vessel ‘Lillian S’ vs Caltex Oil (Kenya) Limited (1989) eKLR**, the Court held that: ***“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings...”*** 1. Similarly, in **Samuel Kamau Macharia & Another vs Kenya Commercial Bank Limited & 2 Others [2012] eKLR,** the Court held that: “***A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.”*** 1. **Section 10** of the **Arbitration Act** provides that: ***“Except as provided in this Act, no court shall intervene in matters governed by this Act.”*** 1. Section 12 of the Arbitration Act expressly confers jurisdiction on this Court to appoint an arbitrator where parties have failed to constitute the arbitral tribunal. Order 46, Rule 5 of the Civil Procedure Rules similarly empowers the Court to appoint an arbitrator or make the necessary directions where the parties have been unable to agree on the appointment within 30 days of a written request. 2. In the matter at hand, the Plaintiff has sought the Court's intervention because the Defendant has failed to participate in the appointment process, rendering the arbitration clause inoperative. Having found that this Court's jurisdiction is expressly based on statute, I find that it is not functus officio and has jurisdiction to determine this application. 3. Regarding the second issue, Clause 4(i) of the lease agreement provides as follows: ***If any dispute or question whatsoever shall arise between the parties hereto with respect to the construction or effect of this Lease or any clause or thing herein contained or the rights duties liabilities of either party under this Lease or otherwise in connection with the said premises the matter in difference shall in the first instance be determined by a single arbitrator in accordance with the Arbitration Act 1995 or any Act or Acts amending or replacing the same. Notwithstanding the foregoing, a party is entitled to seek preliminary injunctive relief or interim or conservatory measures from a Court in Kenya of competent jurisdiction pending the final decision or award of the arbitrator.*** 1. The clause stipulates that dispute resolution shall be conducted by a sole arbitrator and incorporates the procedures outlined in the Arbitration Act. However, it does not explicitly specify an appointing authority. This omission does not render the arbitration agreement null or inoperative. 2. Section 12(2) of the Arbitration Act states that parties are free to agree on the procedure for appointing the arbitral tribunal. However, if the parties are unable to reach an agreement, the Court may appoint an arbitrator. 3. **Section 12(9)** provides that: ***“The High Court in appointing an arbitrator shall have due regard to any qualifications required of an arbitrator by the agreement of the parties and to such considerations as are likely to secure the appointment of an independent and impartial arbitrator and, in the case of a sole or third arbitrator, shall take into account the advisability of appointing an arbitrator of a nationality other than those of the parties.”*** 1. Similarly, **Order 46 Rule 5 of the Civil Procedure Rules** provides that: ***In any of the following cases, namely—*** 1. ***where the parties cannot agree within thirty days with respect to the appointment of an arbitrator, or the person appointed refuses to accept the office of arbitrator; or*** 2. ***where the arbitrator or umpire—*** 3. ***dies; or*** 4. ***refuses or neglects to act or becomes incapable of acting; or*** 5. ***leaves Kenya in circumstances showing that he will probably not return at an early date; or*** 6. ***where the arbitrators are empowered by the order of reference to appoint an umpire and fail to do so, any party may serve the other or the arbitrators, as the case may be, with a written notice to appoint an arbitrator or umpire.*** ***(2) If, within seven clear days after such notice has been served or such further time as the court may in each case allow, no arbitrator or no umpire is appointed, as the case may be, the court may, on application by the party who gave the notice, and after giving the other party an opportunity of being heard, appoint an arbitrator or umpire, or make an order superseding the arbitration, and in such case shall proceed with the suit.*** 1. The power of the Court to appoint an arbitrator or to issue appropriate directions was upheld in **Rao v Shreeji Chemicals Limited & 3 others [2023] KEHC 24600 (KLR)** and **Heritage Consultants Ltd v Permanent Secretary, Ministry of Regional Development [2013] KEHC 3429 (KLR).** 2. In the matter at hand, the Plaintiff wrote to the Defendant on 11th June 2024 proposing three arbitrators for selection and inviting the Defendant to suggest its own candidates. The Defendant did not respond. A follow-up letter issued on 1st July 2024 similarly elicited no response. A further letter addressed to the Defendant on 27th November 2024 raised concerns about the delay and frustration caused by the Defendant's continued inaction. 3. Based on the material placed before this Court, I find that the Applicant has met the conditions contemplated under Section 12 of the Arbitration Act and Order 46 Rule 5 of the Civil Procedure Rules. 4. In the end, I find that the application is merited and it is hereby allowed in the following terms: 1. ***The Chairperson of the Chartered Institute of Arbitrators, Kenya Branch, is hereby authorized to appoint a suitable arbitrator in this matter within twenty-one (21) days of the date of this ruling.*** 2. ***The Plaintiff is awarded costs of the application.*** **RULING SIGNED, DATED, AND DELIVERED VIA MICROSOFT TEAMS THIS 22ND DAY OF MAY, 2026.** **…………………………………….** **HON. T. MURIGI** **JUDGE** **IN THE PRESENCE OF**: Ms Kabaila holding brief for Mutiso for the Plaintiff/Applicant Ms Wangari holding brief for Kihara for the Defendant/Respondent Ahmed – Court assistant