https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8649

Tristar Heights Management Ltd v Bridge the Gap Ltd (Miscellaneous Application E1163 of 2025) [2026] KEHC 8649 (KLR) (Commercial and Tax) (19 June 2026) (Ruling) Neutral citation: [2026] KEHC 8649 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Miscellaneous Application E1163 of 2025 JWW Mong'are, J June 19, 2026 Between Tristar Heights Management Limited Applicant and Bridge The Gap Limited Respondent Ruling Introduction & Background 1.By the Notice of Motion dated 19th November 2025, the Applicant seeks a vesting order under section 12(8) and (9) of the Arbitration Act for the court to empower the Chairman of the Chartered Institute of Arbitrators, Kenya Branch to appoint a sole arbitrator to determine the dispute between the parties arising from the Lease Agreement dated 31st August 2021, relating to Apartment No. B3, LR No. 209/118/100, Tristar Heights, Nairobi. The application is supported by grounds on its face and the affidavits of Hirani Rasila Devshi Hirani, the Applicant’s Accountant sworn on 19th November 2025 and 30th January 2026. 2.The Respondent opposes the application through the replying affidavit of its director, Godfrey Jude Mascaren has sworn on 15th January 2026. The application has been canvassed by way of written submissions that I have considered together with the pleadings and I will be making relevant references to them in my analysis and determination below. Analysis and Determination 3.From the pleadings and submissions, the court is being called to determine whether the court is to appoint an arbitrator pursuant to section 12 of the Arbitration Act where sub-section (2) provides as follows:(2)The parties are free to agree on a procedure of appointing the arbitrator or arbitrators and any chairman and failing such agreement—(a)in an arbitration with three arbitrators, each party shall appoint one arbitrator and the two arbitrators so appointed shall appoint the arbitrator;(b)in an arbitration with two arbitrators, each party shall appoint one arbitrator; and(c)in an arbitration with one arbitrator, the parties shall agree on the arbitrator to be appointed. 4.Where there is a stalemate, sub-sections (3) to (9) are explicit as to the applicable procedure as follows:(3)Unless the parties otherwise agree, where each of two parties to anarbitration agreement is to appoint an arbitrator and one party ("the party in default")—(a)has indicated that he is unwilling to do so;(b)fails to do so within the time allowed under the arbitration agreement; or(c)fails to do so within fourteen days (where the arbitration agreement does not limit the time within which an arbitrator must be appointed by a party), the other party, having duly appointed an arbitrator, may give notice in writing to the party in default that he proposes to appoint his arbitrator to act as sole arbitrator.(4)If the party in default does not, within fourteen days after notice under subsection (3) has been given —(a)make the required appointment; and(b)notify the other party that he has done so, the other party may appoint his arbitrator as sole arbitrator, and the award of that arbitrator shall be binding on both parties as if he had been so appointed by agreement.(5)Where a sole arbitrator has been appointed under subsection (4), the party in default may, upon notice to the other party, apply to the High Court within fourteen days to have the appointment set aside.(6)The High Court may grant an application under subsection (5) only if it is satisfied that there was good cause for the failure or refusal of the party in default to appoint his arbitrator in due time.(7)The High Court, if it grants an application under subsection (5), may, by consent of the parties or on the application of either party, appoint a sole arbitrator.(8)A decision of the High Court in respect of a matter under this section shall be final and not be subject to appeal.(9)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. 5.From the above, it is imperative that parties agree either on the arbitral tribunal or the appointing authority; and that where, as here, the parties seek the intervention of the court in realizing their common objective, the applicant must demonstrate that efforts were made to comply with the applicable procedure set out in the Arbitration Act and the rules thereunder and failed. The late Majanja J., in Wanjala & 2 others v Registrar of Companies & 2 others; Okoa Finance Limited (Interested Party) [2022] KEHC 48 (KLR)aptly put it as follows:“…the Arbitration Act proceeds from the position that the arbitration process is consensual and court intervention is only necessary to assist the parties carry out their stated intention crystallized in the arbitration agreement. Hence section 12 of the Arbitration Act dealing with appointment of arbitrators, does not supplant the parties’ right to appoint or prescribe the mode of appointment of the arbitrator but only sets out a default procedure for the court to intervene should the either fail to comply with the contractual provisions for appointment of an arbitrator. The court can only intervene in matters appointment if the agreement provides for appointment and either party fails to comply with the agreement. 6.The parties agree that the subject Lease Agreement contains an arbitration clause as follows:“All disputes and questions whatsoever which shall arise between the parties hereto touching this Lease or the construction or application thereof for any clause or thing herein contained, or the rights or liabilities of any party under this lease, shall be referred to the decision of a single arbitrator to be appointed in accordance with the provisions of the Arbitration Act, 1995 or any Act amending or replacing the same. The decision of such arbitrator shall be final, conclusive and binding on the parties.” 7.The Applicant’s case is that a dispute in respect of unpaid service charges, parking fees, and related dues amounting to alleged arrears of Kshs. 2,700,639.30 as at November 2025 has arose and the arbitration clause leaves the appointing authority to the parties. The Applicant accuses the Respondent of failing/refusing to cooperate in appointing an arbitrator, making the agreed procedure ineffective. The Applicant avers that it invoked the arbitration clause and wrote to the Chairman of the Chartered Institute of Arbitrators on 13th October 2025. The Charted Institute replied on 15th October 2025 that it could not appoint without a vesting order and the Applicant claims that on 21st October 2025, the Respondent’s director acknowledged part liability of Kshs.205,500.00/= and paid that amount, but refused to cooperate in the appointment of an arbitrator. 8.In response, the Respondents state that the application is ambiguous, misconceived, and improperly invokes the court’s jurisdiction. That the alleged notice of 13th October 2025 was never served on it and the Respondent puts the Applicant to strict proof. That the Chartered Institute’s letter of 15th October 2025 did not say it could not proceed without a court order but that the arbitration clause was silent on the appointing authority, so parties must first mutually agree in writing and only if they fail may they seek court assistance. The Respondent avers that it was denied that opportunity as the Applicant made no attempt to engage the Respondent in discussions to agree on an arbitrator before rushing to court. 9.The Respondent asserts that this court’s intervention under section 12(8) & (9) of the Arbitration Act is supplementary and exceptional and only available after the parties have first attempted and failed to agree on an appointment but that threshold has not been met. For these reasons, the Respondent urges the court to dismiss the application with costs. mechanisms and where possible the court ought to give it full effect. 10.I have gone through the pleadings, submissions and principles set out above and I find that the Applicant has not made out a sufficient case for the court to intervene under section 12 of the Arbitration Act. Under section 12(2)(c) of the Arbitration Act, where the parties have agreed on a sole arbitrator as is the case here, “…the parties shall agree on the arbitrator to be appointed.” I am in agreement with the Respondent that indeed, the court’s intervention is not a first resort but a last resort, available only after the parties have genuinely attempted but failed to agree. As submitted by the Respondent, sections 12(3)-(9) of the Arbitration Act above contemplates a specific sequence where one party must request the other to appoint an arbitrator, the other party must fail or refuse to do so within the agreed time, or within 14 days if no time is specified and only then can the requesting party give a 14-day notice proposing to appoint its own arbitrator as sole arbitrator. If the other party still fails to act, the requesting party may appoint a sole arbitrator and only after that process fails, like the other party challenges the appointment, does the court have a residual role under section 12(7). Evidently, the Applicant skipped all of these steps as it directly and immediately wrote to the Chartered Institute of Arbitrators on 13th October 2025 requesting appointment of a sole arbitrator and yet the Institute is not a party to the arbitration agreement. The obligation to agree on an arbitrator is between the parties themselves, not with a third-party institution and writing to the Institute does not constitute an attempt to agree with the Respondent. 11.The Applicant stated that any attempt to agree on an arbitrator would be futile because of the Respondent’s past conduct of non-payment or ignoring reminders. However, futility does not override a clear statutory requirement and this court has repeatedly held that a party must first engage the other party in the appointment process, even if it expects resistance and a subjective belief of futility is not an excuse. In any event, the Respondent could not refuse what was never requested. The Applicant never proposed a specific arbitrator, never invited the Respondent to propose one, and never issued any notice under section 12(3) or (4) and there was no refusal as there was no request at all. On the Applicant’s claim of partial admission of the underlying debt, the same does not constitute participation in the arbitral appointment process. Going through the Institute’s letter of 15th October 2025 also stated that arbitration clause was “…silent on the appointing authority” and that the parties must first “…resolve in writing on the Appointing Authority.” The Applicant ignored this and went straight to court and before that, The Respondent’s advocates requested documentation from the Applicant through their letter of 18th September 2025 to enable a meaningful response but this too was ignored as the Applicant instead wrote to the Institute. Once again, a party cannot manufacture a stalemate by withholding information and then claim the other party is uncooperative. 12.In summary, the Applicant has failed to demonstrate any attempt to agree on an arbitrator with the Respondent, any request to the Respondent to appoint an arbitrator, any notice of default under section 12(3) of the Arbitration Act and any lapse of the statutory 14-day period after such notice. All the Applicant has shown is that it wrote to the Institute which is not a party to the arbitration agreement and then filed the present application, which is not what section 12 above requires. Conclusion and Disposition 13.In the foregoing, I find that the application dated 19th November 2025 is premature and it is thus struck out with costs DATED SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 19TH DAY OF JUNE 2026............................................................................J.W.W. MONGAREJUDGEIn The Presence OfMr. Maranga for the Applicants.Ms. Mercy Nabwire holding brief for Ms. Ndungu for the Applicant.Amos- Court Assistant