[2014] KEHC 3608 (KLR)
The court found that the management agreement between the applicant and the 1st respondent contained a valid arbitration clause requiring disputes to be referred to a single arbitrator. However, the agreement did not specify the procedure for appointing an arbitrator in the event of disagreement. Since the parties...
Source-derived case information.
- Citation
- [2014] KEHC 3608 (KLR)
- Parties
- Applicant: Tropical Farm Management (Kenya) Ltd.; Respondent: Giciaro Estates Limited; Respondent: Protasio Njeru
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 116 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Originating Summons for Appointment of Arbitrator
- Outcome
- application allowed
- Judges
- DO Ogembo
- Legal Topics
- Arbitration Agreement, Appointment of Arbitrator, Management Contract Dispute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tropical Farm Management (Kenya) Ltd.
Applicant
Giciaro Estates Limited
Respondent
Protasio Njeru
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Originating Summons for Appointment of Arbitrator
Legal Issues
- 1 Whether the court should appoint an arbitrator where the parties have failed to agree on the appointment procedure under the management agreement.
- 2 Whether the Chairman of the Chartered Institute of Arbitrators (Kenya Branch) should be directed to appoint an arbitrator as per the Arbitration Act.
Ratio Decidendi
The court found that the management agreement between the applicant and the 1st respondent contained a valid arbitration clause requiring disputes to be referred to a single arbitrator. However, the agreement did not specify the procedure for appointing an arbitrator in the event of disagreement. Since the parties were unable to agree on the appointment, and the application was unopposed, the court exercised its power under Section 12 of the Arbitration Act to direct the Chairman of the Chartered Institute of Arbitrators (Kenya Branch) to appoint a fit and proper person as arbitrator. The court further ordered that the appointment be made within three days of service of the order,...
Court Disposition
application allowed
Orders
- The Chairman for the time being of the Chartered Institute of Arbitrators (Kenya Branch), Nairobi shall appoint a fit and proper person to act as arbitrator under the Arbitration Act in the dispute between the applicant and the 1st respondent arising from the management agreement dated 5th December 2006.
- The appointment shall be carried out by the said Chairman within three (3) days upon service of this order.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL &ADMIRALTY DIVISION
CIVIL CASE NO. 116 OF 2014 (O.S)
TROPICAL FARM MANAGEMENT (KENYA) LTD. :::::::::::::::::::: APPLICANT
-VERSUS-
GICIARO ESTATES LIMITED ::::::::::::::::::: 1ST RESPONDENT
PROTASIO NJERU ::::::::::::::::::::::::::::::::::: 2ND RESPONDENT
R U L I N G
The application before the court is an Originating Summons dated 24th March 2014. The application is filed under Section 12 of the Arbitration Act, Rule 3 (1) of the Arbitration Rules, Order 37 Rule 14 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act.
The application seeks the following orders namely:-
That the Chairman for the time being of the Chartered Institute of Arbitrators (Kenya Branch) Nairobi do appoint a fit and proper person to act as an arbitrator under the provisions of The Arbitration Act in a dispute between the parties hereto arising from a Management Agreement dated 5th December 2006 made between the Applicant and the 1st Respondent.
That in the alternative, this Honourable Court do appoint a fit and proper person to act as an arbitrator under the provisions of the said Act in the said dispute between the parties hereto, and
That the costs of this application be provided for.
The application is premised on the several grounds set out therein and is supported by affidavit of JEREMY HULME dated 20th March 2014.
The application is not opposed. It was served upon the 1st Respondent who has never entered appearance in this matter, while the suit against the 2nd Respondent was withdrawn.
Mr. JEREMY HULME in his supporting affidavit has given the background on the application. By an Agreement dated 5th December 2006 between the Applicant and the 1st Respondent, the 1st Respondent appointed the Applicant its agent to manage and operate a tea farm which the 1st Respondent then owned at a remuneration and subject to such terms and conditions as are stated therein for a period of five years from 1st day of July 2006.
Clause 13 of the Management Agreement provided that all disputes arising from the said Agreement shall be referred to the decision of a single Arbitrator to be appointed in accordance with the provisions of the Arbitration Act. However it did not provide for the procedure for appointing an Arbitrator in the event of the parties not agreeing as to who should arbitrate. A copy of the said Agreement is annexed to the affidavit of Mr. Jeremy Hulme as exhibit “JH-1”.
The agreement took effect and parties assumed their responsibilities in due course. However, there is now a dispute and the parties are unable to agree or have disagreement on the modalities of appointing an Arbitrator and hence this application.
The application seems to me to be well founded. As it is not opposed, I allow it in the following terms:-
That the Chairman for the time being of the Chartered Instituted of Arbitrator (Kenya Branch), Nairobi do appoint a fit and proper person to act as an Arbitrators under the provisions of the Arbitration Act in the dispute between the parties hereto arising from a management agreement dated 5th December 2006 made between the Applicant and the 1st Respondent.
That the above appointment shall be carried out by the said Chairman within a period of three (3) days upon this order being served upon the said Chairman of the chartered Institute of Arbitrations (Kenya Branch) Nairobi.
That costs shall be in the cause.
Orders accordingly.
DATED, READ AND DELIVERED AT NAIROBI
THIS 31ST DAY OF JULY 2014
E. K. O. OGOLA
JUDGE
PRESENT:
Mrs. Gikonyo for Applicant
No appearance for Respondents
Teresia – Court Clerk