[2018] KEHC 9906 (KLR)

[2018] KEHC 9906 (KLR)

The court found that it lacked jurisdiction to appoint an arbitrator in this matter. The contract between the parties, specifically Clause 67, provided that disputes were to be referred first to the Engineer and, if unresolved, to arbitration under the Rules of Conciliation and Arbitration of the International Chamber of Commerce (ICC). The court held that the appointment of an arbitrator under these rules is to be made by the ICC Court of Arbitration, not the High Court of Kenya. Furthermore, the applicant did not demonstrate that the contractual dispute resolution procedure—referral to the Engineer and subsequent steps—had been followed. The court also noted that the applicant failed to...

Citation
[2018] KEHC 9906 (KLR)
Parties
Applicant: Nyoro Construction Co. Ltd; Respondent: The Hon. Attorney General
Court
High Court
Court Station
High Court at Nairobi (Milimani Law Courts)
Jurisdiction
Kenya
Judgment Date
23 November 2018
Case Number
Miscellaneous Application 491 of 2017
Procedural Posture
Miscellaneous Application / Ruling on Application for Appointment of Arbitrator
Outcome
application dismissed with costs to the respondent
Legal Topics
Arbitration Agreements, Appointment of Arbitrator, Limitation of Actions, Contractual Disputes, Jurisdiction of Court, Construction Contracts
Source Language
English
Commercial and Corporate Civil Procedure Alternative Dispute Resolution Arbitration Agreements Appointment of Arbitrator Limitation of Actions Contractual Disputes Jurisdiction of Court +1 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 4 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

Nyoro Construction Co. Ltd

Applicant

The Hon. Attorney General

Respondent

Procedural Posture

Miscellaneous Application / Ruling on Application for Appointment of Arbitrator

Legal Issues

  1. 1 Whether the court has jurisdiction to appoint an arbitrator under the contract and Arbitration Act in the circumstances presented.
  2. 2 Whether there exists a valid arbitration agreement between the parties to warrant court intervention.
  3. 3 Whether the application is time-barred under the Limitation of Actions Act.

Ratio Decidendi

The court found that it lacked jurisdiction to appoint an arbitrator in this matter. The contract between the parties, specifically Clause 67, provided that disputes were to be referred first to the Engineer and, if unresolved, to arbitration under the Rules of Conciliation and Arbitration of the International Chamber of Commerce (ICC). The court held that the appointment of an arbitrator under these rules is to be made by the ICC Court of Arbitration, not the High Court of Kenya. Furthermore, the applicant did not demonstrate that the contractual dispute resolution procedure—referral to the Engineer and subsequent steps—had been followed. The court also noted that the applicant failed to...

Court Disposition

application dismissed with costs to the respondent

Orders

  • The application for appointment of Engineer Peter Scott as arbitrator is dismissed.
  • Costs of the application are awarded to the respondent.