The Plaintiff has filed an application dated 17.03.2021 in which it seeks several orders including an order for directions to appoint an arbitrator under section 12 of the Arbitration Act. The Defendant has filed a Notice of Preliminary Objection dated 31.05.2022. I have heard the parties on their respective positions and I take the following view of the matter.
It is not in dispute that the subject agreement contains an arbitration clause which requires disputes under it to be referred to arbitration. The court, by an order dated 28.11.2019 (Okwany J), referred the matter to arbitration. The parties have not agreed on an arbitrator hence the application.
The Defendant objects to the application on the ground that the application before the court is incompetent as the procedure by which the Plaintiff has moved the court is not an originating process being a notice of motion. It also complains that the Plaintiff has not consulted it on the proposed arbitrators before moving the court in the proper manner.
As I understand, the Defendant has no objection in principle to the matter being determined by arbitration which has in any case been referred to arbitration. In dealing with the matter, I take guidance from Article 159 of the Constitution which obliges this court to promote Alternative Dispute Resolution which includes arbitration and to eschew procedural technicalities in favour of substantive justice.
Taking the twin constitutional principles into account and bearing in mind that the parties are agreed that the matter should be resolved by arbitration, I order as follows:
1. The parties are directed to agree on a suitable arbitrator within 14 days from the date hereof.
2. In default of such agreement, the Chairperson of the Chartered Institute of Arbitrators, Kenya Branch shall appoint a single arbitrator to resolve the dispute.
3. Each party shall bear its own costs.
DATED and DELIVERED at NAIROBI this 26th day of MAY 2023
D. S. MAJANJA
JUDGE