Background and Introduction
1. This Ruling determines the application dated 8th September 2025, filed by the 1st Respondent. The application is brought under Section 6 of the Arbitration Act (the Act), Rule 2 of the Arbitration Rules, Order 51 Rule 1 of the Civil Procedure Rules, 2010, and Article 159 of the Constitution of Kenya. The 1st Respondent seeks to stay these proceedings and for the dispute to be referred to arbitration.
2. The application is opposed by way of a Replying Affidavit, sworn by Martin Odera Kadu on 3rd November 2025, on behalf of the Applicants. The 2nd Respondent also lodged Grounds of Opposition dated 5th December 2025, further challenging the application. I have carefully considered the pleadings as well as the written submissions filed by all parties.
Analysis and Determination
3. The Court of Appeal in Niazsons (K) Ltd vs. China Road & Bridge Corporation Kenya [2001] eKLR provided authoritative guidance on the considerations that a court must bear in mind when determining an application under Section 6 of the Act. The Court emphasized three critical factors:
i. Whether the applicant has taken any step in the proceedings other than the steps allowed by section 6 of the Act;
ii. Whether there are any legal impediments on the validity, operation, or performance of the arbitration agreement; and
iii. Whether the suit indeed concerns a matter agreed to be referred.
4. Further, in Civil Appeal No. 10 of 2015; Geoffrey Muthinja & another v. Samuel Muguna Henry & 1756 others [2015] eKLR, the Court of Appeal reinforced the doctrine of exhaustion of alternative dispute resolution mechanisms. It held that where a dispute resolution mechanism exists, and its language is clear, such mechanism must be exhausted before the jurisdiction of the courts is invoked. The court aptly observed that Courts ought to be the fora of last resort and not the first port of call.
5. Turning to the present matter, and addressing the first of the three factors that must be considered in light of the Niazsons (K) Ltd case (supra), the record speaks for itself. The 1st Respondent entered appearance on 8th September 2025 and, on the very same day, filed its application pursuant to Section 6 of the Act. In doing so, the 1st Respondent refrained from taking any procedural steps that could be construed as a waiver of its right to insist that the dispute be referred to arbitration. The conduct of the 1st Respondent is therefore consistent with the preservation of that right, and this ground is accordingly satisfied.
6. Turning to the second factor, it must be observed that the grounds upon which this Court may decline to grant an application under Section 6 of the Act are both narrow and clearly defined. The existence of an arbitration clause within the standard agreements executed between the parties is not contested. What the Applicants urge is that the agreement itself is so unconscionable that it ought not to be enforced in its entirety.
7. They further submit that the issues raised in their application dated 18th August 2025 fall outside the scope of the lease agreement, and therefore should properly be determined by this Court rather than by an arbitral tribunal. In essence, the Applicants seek to persuade the Court that the arbitration clause cannot be invoked in the present circumstances, either because the agreement is fundamentally flawed or because the matters in contention are extraneous to the lease.
8. The Applicant’s position is untenable. Their assertions are unsupported by credible evidence, and mere allegations, however forcefully advanced, cannot suffice to displace the clear contractual obligations into which the parties freely entered. It is a cardinal principle of contract law that courts will not interfere with or rewrite agreements where the parties have, in unequivocal terms, expressed their intentions. The sanctity of contract demands that parties be held to the bargains they have struck, save only where illegality, fraud, or contravention of public policy is demonstrated.
9. If the Applicants genuinely believed that the provisions of the agreement were oppressive or unconscionable, they bore the responsibility of raising such concerns at the point of execution. Having willingly executed the agreement, they cannot now, at the stage of enforcement, seek to avoid clauses that appear inconvenient or unfavorable to them. Such conduct is plainly an afterthought and betrays a lack of good faith.
10. Moreover, the issues raised by the Applicants go to the very substance of the dispute. They are not preliminary questions of validity that would justify the Court’s intervention, but rather matters that require full argument and determination. The parties themselves chose arbitration as the forum for resolution of such disputes, and that choice must be respected. The Applicants have further failed to demonstrate that the arbitration clause is in any way unconstitutional, repugnant to justice or morality, or inconsistent with the Bill of Rights or any written law as alleged. No legal impediment has been shown that would affect the validity, operation, or performance of the agreement. In the absence of such impediments, the Court is duty‑bound to uphold the arbitration clause and decline jurisdiction over matters that properly fall within the arbitral forum.
11. Finally, as to whether the suit concerns a matter agreed to be referred to arbitration, the applicant has placed before me, a copy of the standard agreement. Clause 25 of the said agreement is categorical and expressly provides for arbitration as the mechanism for resolving disputes. The clause reads as follows:
25.1 Any dispute, question or difference arising at any time between any of the parties in regard to any matters arising out of, or the rights or the rectification of this Lease, shall be referred to and finally resolved by arbitration under the arbitration rules of the Chartered Institute of Arbitrators [Kenya Branch] [CIA-KB] which rules are deemed to be incorporated by reference into this Clause. The arbitral tribunal shall consist of one (1) arbitrator to be appointed, upon application by any party, by the Chairperson of the CIA-KB at the time or failing him, the President of the Law Society of Kenya. The seat or legal place, of arbitration shall be in Nairobi, Kenya and the language of the arbitration shall be English.
25.2 The determination of the arbitrator shall be final and binding up on the parties and, so far as the law permits, not subject to appeal.
25.3 Notwithstanding the foregoing, a party is entitled to seek preliminary Injunctive relief or interim or conservatory measures from a court of competent Jurisdiction pending the final award.
12. Guidance is again drawn from the Court of Appeal in Civil Appeal No. 55 of 2006, East African Power Management Limited v. Westmont Power (Kenya) Limited. In that decision, the Court emphasized that arbitration agreements must be construed broadly, so as to give full effect to the parties’ intention to resolve disputes outside the court system. The Court observed that:
“The Court should confer the widest possible jurisdiction in the construction of arbitration agreements in determining the nature of claims, differences, and disputes in relation to the subject matter of the contract in which they are included.”
13. This pronouncement is of particular significance. It emphasizes the principle that once parties have elected arbitration as their forum of choice, courts must refrain from adopting a narrow or restrictive interpretation of the arbitration clause. Instead, the clause must be given its full and intended effect, extending to all disputes arising from or connected with the contract, save only where specific exclusions are expressly provided. To do otherwise would undermine the very essence of party autonomy and the policy objective of encouraging arbitration as an alternative dispute resolution mechanism.
14. Applied to the present matter, Clause 25 of the lease agreements is drafted in terms wide enough and captures any dispute, question, or difference arising at any time between any of the parties in relation to the lease. The breadth of this clause leaves no doubt that the matters raised by the Applicants before this Court fall squarely within the disputes contemplated under Clause 25 and this Court cannot assume jurisdiction over matters that the parties themselves agreed to submit to arbitration.
15. It is for this reason also that the argument advanced by the 2nd Respondent, that they are not a party to the lease agreements, must fail. While the 2nd Respondent did not execute the lease agreement, their role and involvement are undeniable. The agreement makes extensive references to the 2nd Respondent, including at Clause 1.1 where Uber is defined as Uber B.V. (Netherlands) and/or its affiliates, which admittedly includes the 2nd Respondent. Further references at Clauses 2.2, 5.3, and 6, among others, demonstrate that the parties intended for the 2nd Respondent to be bound by certain provisions of the lease agreement and to benefit from the contractual framework created therein.
16. The rights and obligations accruing from the agreement are not confined to the signatories alone but extend to those expressly referenced and incorporated into its terms. In these circumstances, I take the view that the arbitration clause is sufficiently inclusive to address disputes involving the 2nd Respondent, provided such disputes arise in relation to the lease agreements.
17. The 2nd Respondent cannot, therefore, purport to be a stranger to the contractual framework or seek to disown the arbitration clause while simultaneously standing to benefit from the agreement. To permit such a position would be inequitable and contrary to both the letter and spirit of the contract.
Disposition
18. Accordingly, the application dated 8th September 2025 is meritorious. It is allowed as prayed and consequently these proceedings are hereby stayed so as to allow parties proceed to arbitration. I make no orders as to costs.
1. This Ruling determines the application dated 8th September 2025, filed by the 1st Respondent. The application is brought under Section 6 of the Arbitration Act (the Act), Rule 2 of the Arbitration Rules, Order 51 Rule 1 of the Civil Procedure Rules, 2010, and Article 159 of the Constitution of Kenya. The 1st Respondent seeks to stay these proceedings and for the dispute to be referred to arbitration.
2. The application is opposed by way of a Replying Affidavit, sworn by Martin Odera Kadu on 3rd November 2025, on behalf of the Applicants. The 2nd Respondent also lodged Grounds of Opposition dated 5th December 2025, further challenging the application. I have carefully considered the pleadings as well as the written submissions filed by all parties.
Analysis and Determination
3. The Court of Appeal in Niazsons (K) Ltd vs. China Road & Bridge Corporation Kenya [2001] eKLR provided authoritative guidance on the considerations that a court must bear in mind when determining an application under Section 6 of the Act. The Court emphasized three critical factors:
i. Whether the applicant has taken any step in the proceedings other than the steps allowed by section 6 of the Act;
ii. Whether there are any legal impediments on the validity, operation, or performance of the arbitration agreement; and
iii. Whether the suit indeed concerns a matter agreed to be referred.
4. Further, in Civil Appeal No. 10 of 2015; Geoffrey Muthinja & another v. Samuel Muguna Henry & 1756 others [2015] eKLR, the Court of Appeal reinforced the doctrine of exhaustion of alternative dispute resolution mechanisms. It held that where a dispute resolution mechanism exists, and its language is clear, such mechanism must be exhausted before the jurisdiction of the courts is invoked. The court aptly observed that Courts ought to be the fora of last resort and not the first port of call.
5. Turning to the present matter, and addressing the first of the three factors that must be considered in light of the Niazsons (K) Ltd case (supra), the record speaks for itself. The 1st Respondent entered appearance on 8th September 2025 and, on the very same day, filed its application pursuant to Section 6 of the Act. In doing so, the 1st Respondent refrained from taking any procedural steps that could be construed as a waiver of its right to insist that the dispute be referred to arbitration. The conduct of the 1st Respondent is therefore consistent with the preservation of that right, and this ground is accordingly satisfied.
6. Turning to the second factor, it must be observed that the grounds upon which this Court may decline to grant an application under Section 6 of the Act are both narrow and clearly defined. The existence of an arbitration clause within the standard agreements executed between the parties is not contested. What the Applicants urge is that the agreement itself is so unconscionable that it ought not to be enforced in its entirety.
7. They further submit that the issues raised in their application dated 18th August 2025 fall outside the scope of the lease agreement, and therefore should properly be determined by this Court rather than by an arbitral tribunal. In essence, the Applicants seek to persuade the Court that the arbitration clause cannot be invoked in the present circumstances, either because the agreement is fundamentally flawed or because the matters in contention are extraneous to the lease.
8. The Applicant’s position is untenable. Their assertions are unsupported by credible evidence, and mere allegations, however forcefully advanced, cannot suffice to displace the clear contractual obligations into which the parties freely entered. It is a cardinal principle of contract law that courts will not interfere with or rewrite agreements where the parties have, in unequivocal terms, expressed their intentions. The sanctity of contract demands that parties be held to the bargains they have struck, save only where illegality, fraud, or contravention of public policy is demonstrated.
9. If the Applicants genuinely believed that the provisions of the agreement were oppressive or unconscionable, they bore the responsibility of raising such concerns at the point of execution. Having willingly executed the agreement, they cannot now, at the stage of enforcement, seek to avoid clauses that appear inconvenient or unfavorable to them. Such conduct is plainly an afterthought and betrays a lack of good faith.
10. Moreover, the issues raised by the Applicants go to the very substance of the dispute. They are not preliminary questions of validity that would justify the Court’s intervention, but rather matters that require full argument and determination. The parties themselves chose arbitration as the forum for resolution of such disputes, and that choice must be respected. The Applicants have further failed to demonstrate that the arbitration clause is in any way unconstitutional, repugnant to justice or morality, or inconsistent with the Bill of Rights or any written law as alleged. No legal impediment has been shown that would affect the validity, operation, or performance of the agreement. In the absence of such impediments, the Court is duty‑bound to uphold the arbitration clause and decline jurisdiction over matters that properly fall within the arbitral forum.
11. Finally, as to whether the suit concerns a matter agreed to be referred to arbitration, the applicant has placed before me, a copy of the standard agreement. Clause 25 of the said agreement is categorical and expressly provides for arbitration as the mechanism for resolving disputes. The clause reads as follows:
25.1 Any dispute, question or difference arising at any time between any of the parties in regard to any matters arising out of, or the rights or the rectification of this Lease, shall be referred to and finally resolved by arbitration under the arbitration rules of the Chartered Institute of Arbitrators [Kenya Branch] [CIA-KB] which rules are deemed to be incorporated by reference into this Clause. The arbitral tribunal shall consist of one (1) arbitrator to be appointed, upon application by any party, by the Chairperson of the CIA-KB at the time or failing him, the President of the Law Society of Kenya. The seat or legal place, of arbitration shall be in Nairobi, Kenya and the language of the arbitration shall be English.
25.2 The determination of the arbitrator shall be final and binding up on the parties and, so far as the law permits, not subject to appeal.
25.3 Notwithstanding the foregoing, a party is entitled to seek preliminary Injunctive relief or interim or conservatory measures from a court of competent Jurisdiction pending the final award.
12. Guidance is again drawn from the Court of Appeal in Civil Appeal No. 55 of 2006, East African Power Management Limited v. Westmont Power (Kenya) Limited. In that decision, the Court emphasized that arbitration agreements must be construed broadly, so as to give full effect to the parties’ intention to resolve disputes outside the court system. The Court observed that:
“The Court should confer the widest possible jurisdiction in the construction of arbitration agreements in determining the nature of claims, differences, and disputes in relation to the subject matter of the contract in which they are included.”
13. This pronouncement is of particular significance. It emphasizes the principle that once parties have elected arbitration as their forum of choice, courts must refrain from adopting a narrow or restrictive interpretation of the arbitration clause. Instead, the clause must be given its full and intended effect, extending to all disputes arising from or connected with the contract, save only where specific exclusions are expressly provided. To do otherwise would undermine the very essence of party autonomy and the policy objective of encouraging arbitration as an alternative dispute resolution mechanism.
14. Applied to the present matter, Clause 25 of the lease agreements is drafted in terms wide enough and captures any dispute, question, or difference arising at any time between any of the parties in relation to the lease. The breadth of this clause leaves no doubt that the matters raised by the Applicants before this Court fall squarely within the disputes contemplated under Clause 25 and this Court cannot assume jurisdiction over matters that the parties themselves agreed to submit to arbitration.
15. It is for this reason also that the argument advanced by the 2nd Respondent, that they are not a party to the lease agreements, must fail. While the 2nd Respondent did not execute the lease agreement, their role and involvement are undeniable. The agreement makes extensive references to the 2nd Respondent, including at Clause 1.1 where Uber is defined as Uber B.V. (Netherlands) and/or its affiliates, which admittedly includes the 2nd Respondent. Further references at Clauses 2.2, 5.3, and 6, among others, demonstrate that the parties intended for the 2nd Respondent to be bound by certain provisions of the lease agreement and to benefit from the contractual framework created therein.
16. The rights and obligations accruing from the agreement are not confined to the signatories alone but extend to those expressly referenced and incorporated into its terms. In these circumstances, I take the view that the arbitration clause is sufficiently inclusive to address disputes involving the 2nd Respondent, provided such disputes arise in relation to the lease agreements.
17. The 2nd Respondent cannot, therefore, purport to be a stranger to the contractual framework or seek to disown the arbitration clause while simultaneously standing to benefit from the agreement. To permit such a position would be inequitable and contrary to both the letter and spirit of the contract.
Disposition
18. Accordingly, the application dated 8th September 2025 is meritorious. It is allowed as prayed and consequently these proceedings are hereby stayed so as to allow parties proceed to arbitration. I make no orders as to costs.