Automated Summary
Key Facts
This case involves a construction works dispute between Samson Ngugi Kamau (petitioner) and Conslog Engineering Services Limited (respondent). The petitioner applied for arbitration under the Arbitration Act 1995 and the parties' contract (Clause 9), which mandates third-party dispute resolution before arbitration. A third party (County Government of Kirinyaga) conducted three mediation sessions (18 November 2024, 13 January 2025, 10 February 2025) that failed to resolve the dispute. The court allowed 14 days for the parties to appoint an arbitrator per the contract and, if unsuccessful, directed a court appointment. The matter was scheduled for mention on 3 September 2025.
Transaction Type
Construction works dispute under a contract with arbitration clause
Issues
- The court considered the statutory framework for appointing a single arbitrator under section 12(c) of the Arbitration Act. The issue involved whether the parties should be allowed to mutually agree on an arbitrator, or if the court must intervene to establish a fair appointment process following the failure of the third-party ADR mechanism.
- The court addressed the validity of the parties' arbitration clause under the Arbitration Act 1995, following three unsuccessful ADR meetings with the County Government of Kirinyaga. The issue centered on whether the applicant's pursuit of arbitration violated the contract's dispute resolution process or constituted improper forum shopping to secure a biased tribunal.
Holdings
- The court grants the parties 14 days to engage a third party (County Government of Kirinyaga) to resolve the dispute. If unresolved, the court will appoint an arbitrator or direct the Chairman of the Institute of Arbitrators to do so. The matter is mentioned on 4th November 2024 for further directions.
- The court emphasizes the need to guard against a party securing an arbitrator who could be influenced to favor their case. It allows the parties to appoint a sole arbitrator under the Arbitration Act 1995, with the court intervening if no agreement is reached.
- The court orders the parties to provide written evidence of their attempts to resolve the dispute through the third party. The matter is mentioned again on 3 September 2025 for directions on the arbitrator's appointment.
Remedies
- The Court allows the parties a period of fourteen (14) days to conclude consultations for the appointment of a sole arbitrator.
- The matter is scheduled for mention on 2025-09-03 to provide directions regarding the appointment of an arbitrator in the case.
Legal Principles
Purposive Approach
Key Disputed Contract Clauses
Clause 9 of the parties' contract outlines that disputes must first be referred to a third party for resolution, and if unresolved, an arbitrator will be appointed in accordance with Kenyan arbitration laws.
Cited Statute
- Arbitrators Act
- Arbitration Act, 1995
- Constitution of Kenya
Judge Name
Edward M. Muriithi
Passage Text
- 1. The Court grants the parties 14 days in terms of Clause 9 of the Agreement to engage a third party to resolve the dispute.
- 6. In default of the resolution of the dispute by the third party, the Court must consider the appointment of the arbitrator. The Court must, however, guard against an appointment procedure which allows the one party to secure the appointment of arbitration tribunal which he can arm-twist to favour his cause.
- 10. The Court shall allow the parties a time of fourteen (14) days to conclude the consultations that may lead to the appointment of the sole arbitrator.