Background
1. For determination is the Plaintiff's Notice of Motion dated 17 April 2026. The application arises from this Court's ruling delivered on 24 July 2025 in which the Court upheld the Defendant's Preliminary Objection to the extent that the dispute fell within the parties' arbitration agreement and consequently stayed these proceedings pending arbitration.
2. The Court further directed the parties to agree upon an arbitrator within thirty (30) days, failing which the Chairperson of the Chartered Institute of Arbitrators (Kenya Branch) was to appoint one within a further thirty (30) days.
3. The Application is supported by the affidavit of Joram Nyanzi, sworn on 17th April 2026.
4. The Plaintiff contends that following the ruling, it attempted, through letters dated 20 August, 21 August and 9 October 2025, to engage the Defendant in the appointment process but received no cooperation, and that it thereafter wrote to the Chairperson of the Chartered Institute of Arbitrators on 12 February 2026 requesting the appointment of an arbitrator but the request was unsuccessful after the Defendant objected on the ground that the court-imposed timelines had already expired.
5. The Plaintiff therefore seeks the intervention of this Court to facilitate the appointment of an arbitrator.
6. The Defendant, on its part, opposed the application vide the Grounds of Opposition dated 28th April 2026. It argued, in the main, that the timelines fixed by the Court expired on 24 September 2025 and that the Court cannot revive those orders. It further contended that Clauses 59 and 60 of the Joint Working Agreement require the parties to first pursue friendly consultation and mediation before arbitration and that the Court became functus officio upon delivering the ruling of 24 July 2025.
7. The 2nd Interested Party similarly opposed the application vide its Grounds of Opposition dated 29th April 2026 on grounds that it amounts to an attempt to appeal or review the ruling of 24 July 2025, that the Applicant is guilty of inordinate delay, and that the Court is functus officio.
8. The application was canvassed by written submissions. The Plaintiff/Applicant filed submissions dated 25 May 2026, whilst the Defendant’s submissions are dated 5 June 2026.
Analysis and Determination
9. Having duly considered the application and the submissions on record, I find that the sole issue for determination is whether this Court should intervene to facilitate the appointment of an arbitrator notwithstanding the lapse of the timelines contained in its ruling of 24 July 2025.
10. From the record, it is undisputed that this Court, in its Ruling of 24 July 2025, found the dispute to be subject to Clause 60 of the Joint Working Agreement and stayed these proceedings pending arbitration.
11. That determination has neither been appealed nor reviewed.
12. Equally undisputed is the fact that the Court directed the parties to agree upon an arbitrator within thirty (30) days, failing which the Chairperson of the Chartered Institute of Arbitrators (Kenya Branch) was to appoint one within a further thirty days.
13. The Defendants/Respondents in opposing the present application argue that upon expiry of the 30 days’ timeline directed by the Court, the orders automatically lapsed and cannot now be revived in the present application. They further contend that any further intervention would amount to the Court sitting on appeal over its own decision.
14. I respectfully disagree.
15. The present application, in the view of the Court, does not invite the Court to reconsider whether the dispute should be referred to arbitration. That question was conclusively determined in the ruling of 24 July 2025. Neither does the Applicant seek to vary or review that decision.
16. Instead, the Court in the present application is being invited to determine whether it should exercise its statutory supervisory jurisdiction in aid of the arbitral process after the agreed appointment mechanism failed.
17. Those are two distinct questions.
18. The Arbitration Act is founded on the twin principles of party autonomy and minimal judicial intervention. While section 10 circumscribes the Court's intervention in arbitral proceedings except as expressly provided under the Act, the Act simultaneously preserves a supportive supervisory jurisdiction where judicial assistance is necessary to give effect to the arbitral process. Section 12 of the Arbitration Act, in particular, provides expressly recognises the Court's facilitative role, upon an application, where the agreed appointment procedure fails because one party refuses to act or because the agreed mechanism otherwise becomes ineffective.
19. The limited court intervention and the supportive role of the Court in an arbitration process have been recognised in several cases including in Prof. Lawrence Gumbe & another v Honourable Mwai Kibaki & others, High Court Miscellaneous No. 1025 of 2004, where the Court stated that:
“Our section 10 is based on the United Nations Model Law on arbitration and all countries who have ratified it recognize and enforce the autonomy of the arbitral process. Courts of law can only intervene in the specific areas stipulated in the Act and in most cases that intervention is usually supportive and not obstructive or usurpation oriented. If the Kenyan courts refused to recognize this autonomy, we would become a pariah State and could be isolated internationally.”
20. The Supreme Court in Nyutu Agrovet Limited v Airtel Networks Kenya Limited;Chartered Institute of Arbitrators-Kenya Branch [2019] KESC 11 (KLR) reaffirmed that section 10 reflects the legislative intention to restrict court intervention while recognising that the Court retains jurisdiction where the Act expressly confers it. The Supreme Court further observed that judicial intervention contemplated by the Act is intended to support, rather than undermine, the arbitral process.
21. In Nyoro Construction Co Ltd v Attorney General [2018] KEHC 9906 (KLR), the Court stated as follows on the facilitative role of Section 12 of the Arbitration Act:
“Thus the role of the Court in appointment process in arbitration is that of a default mechanism. Section 12(3)(a) of the Act, (see also Article 11(3)(b) Model Law) referred to herein gives the High Court the authority to appoint an arbitrator upon an application of a party. It however suffices to note that, it will be upon the failure of the parties to agree on an arbitrator.”
22. It therefore follows that the Defendant's argument that expiry of the timelines extinguished the arbitration clause cannot be accepted. The Court has a statutory duty, imposed under Section 12 of the Act, to ensure the appointment of an arbitrator is not impeded.
23. In the present case, the timelines fixed by the Court were procedural directions intended to facilitate expeditious commencement of arbitration. They were never intended to destroy the parties' substantive contractual agreement to arbitrate. Had the Court intended that failure to comply within sixty days would permanently terminate arbitration, it would have said so expressly.
24. Nothing in the ruling of 24 July 2025 suggests such an intention.
25. Further, nothing in the Arbitration Act provides that an arbitration agreement ceases to exist merely because parties fail to appoint an arbitrator within a prescribed period.
26. The Defendant further argues that the Plaintiff was indolent.
27. The material before the Court, however, shows that the Plaintiff initiated correspondence proposing appointment of an arbitrator after the ruling. Whether those efforts were sufficiently prompt may be another question. However, the correspondence equally demonstrates that no consensus was achieved and that the Defendant consistently maintained that the appointment process had lapsed, with the consequence that the contractual appointment mechanism became incapable of practical implementation.
28. That is where the provisions of Section 12 of the Arbitration Act set in. As pointed out hereinabove, where the agreed mechanism fails because the parties cannot cooperate, the Court's statutory jurisdiction becomes available.
29. I am equally unpersuaded by the submission that the Court is functus officio.
30. The functus officio doctrine prevents a court from reopening or re-determining issues already conclusively decided. It does not prevent the Court from exercising statutory powers expressly conferred upon it by the Arbitration Act in support of an arbitral process that the Court itself directed should proceed.
31. It is, however, critical to note that the Plaintiff cannot seek revival of the timelines contained in the ruling of 24 July 2025. Those timelines have indeed expired.
32. What the Court can do, in the circumstances of the present case, in the exercise of its independent jurisdiction under the Arbitration Act, is to ensure that the parties' arbitration agreement is not defeated through failure of the agreed appointment procedure.
33. The upshot of the foregoing is that I am satisfied that the application has merit. Accordingly, the Notice of Motion dated 17 April 2026 is allowed on the following terms:
i. Pursuant to Section 12 of the Arbitration Act and the Court's supervisory jurisdiction in aid of arbitration, the Chairperson of the Chartered Institute of Arbitrators (Kenya Branch) shall, within thirty (30) days of service of this order, appoint a sole arbitrator to determine the dispute arising under the Joint Working Agreement dated 29 June 2021.
ii. The stay of these proceedings shall remain in force pending conclusion of the arbitral proceedings.
iii. Costs of the application shall abide the outcome of the arbitration.
34. It is so ordered.
DATED, SIGNED, AND DELIVERED AT NAIROBI
THIS 9TH DAY OF JULY 2026
HON. MR. JUSTICE MOSES ADO
Judge of the High Court
In the Presence of:
Moses C/A
……………… for the Applicant
……………for the Respondents
1. For determination is the Plaintiff's Notice of Motion dated 17 April 2026. The application arises from this Court's ruling delivered on 24 July 2025 in which the Court upheld the Defendant's Preliminary Objection to the extent that the dispute fell within the parties' arbitration agreement and consequently stayed these proceedings pending arbitration.
2. The Court further directed the parties to agree upon an arbitrator within thirty (30) days, failing which the Chairperson of the Chartered Institute of Arbitrators (Kenya Branch) was to appoint one within a further thirty (30) days.
3. The Application is supported by the affidavit of Joram Nyanzi, sworn on 17th April 2026.
4. The Plaintiff contends that following the ruling, it attempted, through letters dated 20 August, 21 August and 9 October 2025, to engage the Defendant in the appointment process but received no cooperation, and that it thereafter wrote to the Chairperson of the Chartered Institute of Arbitrators on 12 February 2026 requesting the appointment of an arbitrator but the request was unsuccessful after the Defendant objected on the ground that the court-imposed timelines had already expired.
5. The Plaintiff therefore seeks the intervention of this Court to facilitate the appointment of an arbitrator.
6. The Defendant, on its part, opposed the application vide the Grounds of Opposition dated 28th April 2026. It argued, in the main, that the timelines fixed by the Court expired on 24 September 2025 and that the Court cannot revive those orders. It further contended that Clauses 59 and 60 of the Joint Working Agreement require the parties to first pursue friendly consultation and mediation before arbitration and that the Court became functus officio upon delivering the ruling of 24 July 2025.
7. The 2nd Interested Party similarly opposed the application vide its Grounds of Opposition dated 29th April 2026 on grounds that it amounts to an attempt to appeal or review the ruling of 24 July 2025, that the Applicant is guilty of inordinate delay, and that the Court is functus officio.
8. The application was canvassed by written submissions. The Plaintiff/Applicant filed submissions dated 25 May 2026, whilst the Defendant’s submissions are dated 5 June 2026.
Analysis and Determination
9. Having duly considered the application and the submissions on record, I find that the sole issue for determination is whether this Court should intervene to facilitate the appointment of an arbitrator notwithstanding the lapse of the timelines contained in its ruling of 24 July 2025.
10. From the record, it is undisputed that this Court, in its Ruling of 24 July 2025, found the dispute to be subject to Clause 60 of the Joint Working Agreement and stayed these proceedings pending arbitration.
11. That determination has neither been appealed nor reviewed.
12. Equally undisputed is the fact that the Court directed the parties to agree upon an arbitrator within thirty (30) days, failing which the Chairperson of the Chartered Institute of Arbitrators (Kenya Branch) was to appoint one within a further thirty days.
13. The Defendants/Respondents in opposing the present application argue that upon expiry of the 30 days’ timeline directed by the Court, the orders automatically lapsed and cannot now be revived in the present application. They further contend that any further intervention would amount to the Court sitting on appeal over its own decision.
14. I respectfully disagree.
15. The present application, in the view of the Court, does not invite the Court to reconsider whether the dispute should be referred to arbitration. That question was conclusively determined in the ruling of 24 July 2025. Neither does the Applicant seek to vary or review that decision.
16. Instead, the Court in the present application is being invited to determine whether it should exercise its statutory supervisory jurisdiction in aid of the arbitral process after the agreed appointment mechanism failed.
17. Those are two distinct questions.
18. The Arbitration Act is founded on the twin principles of party autonomy and minimal judicial intervention. While section 10 circumscribes the Court's intervention in arbitral proceedings except as expressly provided under the Act, the Act simultaneously preserves a supportive supervisory jurisdiction where judicial assistance is necessary to give effect to the arbitral process. Section 12 of the Arbitration Act, in particular, provides expressly recognises the Court's facilitative role, upon an application, where the agreed appointment procedure fails because one party refuses to act or because the agreed mechanism otherwise becomes ineffective.
19. The limited court intervention and the supportive role of the Court in an arbitration process have been recognised in several cases including in Prof. Lawrence Gumbe & another v Honourable Mwai Kibaki & others, High Court Miscellaneous No. 1025 of 2004, where the Court stated that:
“Our section 10 is based on the United Nations Model Law on arbitration and all countries who have ratified it recognize and enforce the autonomy of the arbitral process. Courts of law can only intervene in the specific areas stipulated in the Act and in most cases that intervention is usually supportive and not obstructive or usurpation oriented. If the Kenyan courts refused to recognize this autonomy, we would become a pariah State and could be isolated internationally.”
20. The Supreme Court in Nyutu Agrovet Limited v Airtel Networks Kenya Limited;Chartered Institute of Arbitrators-Kenya Branch [2019] KESC 11 (KLR) reaffirmed that section 10 reflects the legislative intention to restrict court intervention while recognising that the Court retains jurisdiction where the Act expressly confers it. The Supreme Court further observed that judicial intervention contemplated by the Act is intended to support, rather than undermine, the arbitral process.
21. In Nyoro Construction Co Ltd v Attorney General [2018] KEHC 9906 (KLR), the Court stated as follows on the facilitative role of Section 12 of the Arbitration Act:
“Thus the role of the Court in appointment process in arbitration is that of a default mechanism. Section 12(3)(a) of the Act, (see also Article 11(3)(b) Model Law) referred to herein gives the High Court the authority to appoint an arbitrator upon an application of a party. It however suffices to note that, it will be upon the failure of the parties to agree on an arbitrator.”
22. It therefore follows that the Defendant's argument that expiry of the timelines extinguished the arbitration clause cannot be accepted. The Court has a statutory duty, imposed under Section 12 of the Act, to ensure the appointment of an arbitrator is not impeded.
23. In the present case, the timelines fixed by the Court were procedural directions intended to facilitate expeditious commencement of arbitration. They were never intended to destroy the parties' substantive contractual agreement to arbitrate. Had the Court intended that failure to comply within sixty days would permanently terminate arbitration, it would have said so expressly.
24. Nothing in the ruling of 24 July 2025 suggests such an intention.
25. Further, nothing in the Arbitration Act provides that an arbitration agreement ceases to exist merely because parties fail to appoint an arbitrator within a prescribed period.
26. The Defendant further argues that the Plaintiff was indolent.
27. The material before the Court, however, shows that the Plaintiff initiated correspondence proposing appointment of an arbitrator after the ruling. Whether those efforts were sufficiently prompt may be another question. However, the correspondence equally demonstrates that no consensus was achieved and that the Defendant consistently maintained that the appointment process had lapsed, with the consequence that the contractual appointment mechanism became incapable of practical implementation.
28. That is where the provisions of Section 12 of the Arbitration Act set in. As pointed out hereinabove, where the agreed mechanism fails because the parties cannot cooperate, the Court's statutory jurisdiction becomes available.
29. I am equally unpersuaded by the submission that the Court is functus officio.
30. The functus officio doctrine prevents a court from reopening or re-determining issues already conclusively decided. It does not prevent the Court from exercising statutory powers expressly conferred upon it by the Arbitration Act in support of an arbitral process that the Court itself directed should proceed.
31. It is, however, critical to note that the Plaintiff cannot seek revival of the timelines contained in the ruling of 24 July 2025. Those timelines have indeed expired.
32. What the Court can do, in the circumstances of the present case, in the exercise of its independent jurisdiction under the Arbitration Act, is to ensure that the parties' arbitration agreement is not defeated through failure of the agreed appointment procedure.
33. The upshot of the foregoing is that I am satisfied that the application has merit. Accordingly, the Notice of Motion dated 17 April 2026 is allowed on the following terms:
i. Pursuant to Section 12 of the Arbitration Act and the Court's supervisory jurisdiction in aid of arbitration, the Chairperson of the Chartered Institute of Arbitrators (Kenya Branch) shall, within thirty (30) days of service of this order, appoint a sole arbitrator to determine the dispute arising under the Joint Working Agreement dated 29 June 2021.
ii. The stay of these proceedings shall remain in force pending conclusion of the arbitral proceedings.
iii. Costs of the application shall abide the outcome of the arbitration.
34. It is so ordered.
DATED, SIGNED, AND DELIVERED AT NAIROBI
THIS 9TH DAY OF JULY 2026
HON. MR. JUSTICE MOSES ADO
Judge of the High Court
In the Presence of:
Moses C/A
……………… for the Applicant
……………for the Respondents