Kinyae Kituku Sammy v Kencom Sacco Society Limited [2020] KEHC 6234 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

MILIMANI COMMERCIAL & TAX DIVISION

MISCELLANEOUS APPL. NO. 239 OF 2019

KINYAE KITUKU SAMMY...............................................................APPLICANT

VERSUS

KENCOM SACCO SOCIETY LIMITED....................................RESPONDENT

R U L I N G

1. Kinyae Kituku Sammy (Kinyae) prays, by the Notice of Motion dated 9th July 2019 for an order appointing a sole arbitrator to hear and determine the dispute between the parties herein.  The arbitration clause is contained in the agreement for sale dated 4th November 2016 between the parties.  That clause provides:

29. ARBITRATION CLAUSE

All disputes and questions whatsoever which shall arise between the parties hereto touching the Sale Agreement or the construction or application thereof of any clause or thing herein contained or to the rights or liabilities of any party under this Sale Agreement shall be referred to the decision of a single arbitrator which arbitrator must be agreed by both parties and in accordance with the provisions of the Arbitration Act 1995 or any Act or Acts amending or replacing the same.

2. When a dispute, relating to the performance and completion of the agreement for sale arose and pursuant to the arbitration clause, Kinyae appointed Mr Mbiriri Nderitu to arbitrate over the dispute.  That arbitrator however declined his appointment due to the respondent’s non-responsiveness.  It is in that background Kinyae has applied to the court to appoint a sole arbitrator.

3. Section 12 (9) of the Arbitration Act provides this court with the power to appoint an arbitrator.  Bearing in mind the provisions of that section I am inclined to appoint Samuel Mbiriri Nderitu.  I note in his letter of 5th December 2018, Mr Nderitu confirmed that he is competent to take up the appointment of a sole arbitrator.

4. Accordingly, I hereby appoint Samuel Mbiriri Nderitu as the sole arbitrator to arbitrate over the dispute between Kinyae Kituku Sammy and Kencom Sacco Society Limited.  There is no order as to costs in respect to the Notice of Motion dated 9th July 2019.

DATED, SIGNED and DELIVERED at NAIROBI this28thday of APRIL,2020.

MARY KASANGO

JUDGE

ORDER

In view of the measures restricting court operations due to the COVID-19 pandemic and in light of the Gazette Notice No 3137 of 17th April 2020 and further parties having been notified of the virtual delivery of this decision, this decision is hereby virtually delivered this 28th day of April, 2020.

MARY KASANGO

JUDGE