The Applicant has moved the court by the application dated 03.03.2023 made under section 7, 13(3) and 14(3) of the Arbitration Act. In essence this is a challenge of the arbitrator . The Applicant complains that the arbitrator was improperly appointed and that throughout the arbitration process he has exhibited bias. The Respondent has raised an objection that this court lacks jurisdiction to entertain the challenge as it made contrary to section 14 of the Arbitration Act.
I agree. Before a challenge is mounted, the parties must agree on a procedure failing which the party intending to challenge the arbitrator must inform the arbitrator of the grounds of challenge within 15 days of becoming aware of the circumstances it complains of. It appears that no procedure was agreed on and from the application before the court, the notice of preliminary objection before the Arbitrator was filed on 27th July 2020 yet the proceedings had already commenced in May 2019 hence the objection was clearly out of time.
Further and on the face of the application before this court there has been no decision made by the Arbitrator on the issue of jurisdiction hence under section 14(2), the application before this court is premature. In the application, the Applicant refers to a decision of the Arbitrator made on 8th May 2019 which its seeks to be set aside. If that is the decision, the application is time barred as the application to this court ought to have been made within 30 days of the decision in accordance with section 14(3) of the Act. Two years have since elapsed.
Under section 10 of the Act, the court can only intervene in the manner provided for under the Act. The applicant has not moved the court in accordance with the Act.
The application dated 03.03.2023 is struck out. The Applicant shall pay the Respondent costs assessed at Kshs, 40,000.00.
DATED and DELIVERED at NAIROBI this 24th day of MAY 2023
D. S. MAJANJA
JUDGE