[2008] KEHC 708 (KLR)
The court found that the defendant's failure to appoint a replacement arbitrator within three weeks after the resignation of its initial appointee justified judicial intervention. However, in the interests of fairness and to uphold the autonomy of the parties under the arbitration agreement, the court granted the...
Source-derived case information.
- Citation
- [2008] KEHC 708 (KLR)
- Parties
- Applicant: Pan Africa Builders & Contractors; Respondent: National Social Security Fund Board of Trustees
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 701 of 2005
- Procedural Posture
- Civil Suit / Ruling
- Outcome
- Conditional order for appointment of arbitrator; fallback appointment mechanism provided.
- Judges
- LK Kimaru
- Legal Topics
- Arbitrator Appointment, Arbitration Agreement Enforcement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Pan Africa Builders & Contractors
Applicant
National Social Security Fund Board of Trustees
Respondent
Procedural Posture
Civil Suit / Ruling
Legal Issues
- 1 Whether the court should intervene to appoint an arbitrator on behalf of the defendant after the resignation of the defendant's appointed arbitrator.
- 2 Whether the defendant should be given further opportunity to appoint a replacement arbitrator before court intervention.
Ratio Decidendi
The court found that the defendant's failure to appoint a replacement arbitrator within three weeks after the resignation of its initial appointee justified judicial intervention. However, in the interests of fairness and to uphold the autonomy of the parties under the arbitration agreement, the court granted the defendant a final opportunity to appoint a new arbitrator by a specified deadline. Should the defendant fail to do so, the Chairman of the Chartered Institute of Arbitrators would be empowered to make the appointment on the defendant's behalf. This approach balances the need for expeditious dispute resolution with respect for party autonomy in arbitration.
Court Disposition
Conditional order for appointment of arbitrator; fallback appointment mechanism provided.
Orders
- The defendant is directed to appoint a new arbitrator to determine the dispute on or before 20th December 2008.
- If the defendant fails to appoint an arbitrator by the deadline, the Chairman of the Chartered Institute of Arbitrators shall be at liberty to appoint an arbitrator on behalf of the defendant in place of Mr. Norman Mururu.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (MILIMANI COMMERCIAL COURTS)
CIVIL SUIT 701 OF 2005 (OS)
PAN AFRICA BUILDERS & CONTRACTORS…........ PLAINTIFF/APPLICANT
VERSUS
NATIONAL SOCIAL SECURITY FUND
BOARD OF TRUSTEES...........................................DEFENDANT/RESPONDENT
R U L I N G
The parties to this suit agreed by consent to refer the matters in dispute for determination by arbitration. Each party was to appoint an arbitrator. The arbitration proceedings were to be conducted before the two arbitrators. The plaintiff and the defendant duly appointed the said arbitrators. However, the arbitrator appointed by the defendant resigned. Three (3) weeks after his resignation, the defendant has not appointed another arbitrator to replace him. The court is being told that the decision making process in the defendant fund has been paralysed on account of the fact that there is currently no substantive managing trustee in office. There is also a dispute involving the capacity of the Board of Trustees to meet, deliberate and make key decisions.
I have considered the facts of this case. It is evident that the plaintiff made a case for intervention by the court in the appointment of the arbitrator supposed to be appointed by the defendant in replacement of the arbitrator who resigned. I will however give an opportunity to the defendant to make the appointment of the new arbitrator before this court’s orders come into play. The defendant is directed to appoint a new arbitrator to determine the dispute herein on or before 20th December 2008.
If such appointment shall not be forthcoming, the chairman Chartered Institute of Arbitrators shall be at liberty to appoint an arbitrator on behalf of the defendant in place of Mr. Norman Mururu who tendered his resignation. The costs of this application shall be in the cause.
DATED at NAIROBI this 28th day of NOVEMBER 2008.
L. KIMARU
JUDGE