' 1. The applicants moved the court by way of an application dated 10th April 2025, filed under sections 7 and 14 of the Arbitration Act and article 159 of the Constitution, seeking to set aside the appointment of the 2nd respondent as sole arbitrator, and for the court to appoint an arbitrator on behalf of the parties.
2. The applicants explained that in October 2020, they awarded the 3rd respondent a contract worth Kshs. 35,576,869 for the construction of a residential house on L.R. No. Ngong/Ngong/96934. The project, scheduled for completion in July 2021, stalled due to mismanagement, breach of contract and misrepresentation by the 3rd respondent.
3. Disputes arose, and although parties attempted amicable settlement, the 3rd respondent invoked clause 45 of the contract providing for arbitration (referral to, and appointment of arbitrators) in case of disputes between the parties. Both sides exchanged proposals of arbitrators, but no agreement had been reached.
4. On 18/2/2025, the applicants state that they received a communication from the 2nd respondent that he had been appointed sole arbitrator by the 1st respondent. The Applicants state that this was done without their knowledge or consent. The applicants objected, noting that no notice of dispute had been issued and the procedure under clause 45 had not been followed. Despite their objections, the 2nd respondent continued to act.
5. The applicants argued that the appointment was opaque, lacked transparency, and created a risk of bias given the professional connections between the 2nd and 3rd respondents. They contended that unless the court intervened to stay the proceedings and appoint a new arbitrator, they would suffer prejudice and injustice.
2nd Respondent’s opposition
6. The 2nd respondent opposed the subject application vide a replying affidavit and grounds of opposition both dated 22/4/2025.
7. The 2nd respondent averred that he was the sole arbitrator appointed under clause 45 of the agreement between the applicants and the 3rd respondent. He confirmed that he had not undertaken any steps in the arbitration save for proposing a preliminary meeting, which did not take place owing to the applicants’ objection to his appointment.
8. The 2nd respondent affirmed his independence, impartiality, and commitment to conduct the arbitration in accordance with the law and natural justice. He further deponed that the application was premature and sought to usurp the arbitrator’s decision-making authority contrary to the competence-competence principle.
3rd respondent’s opposition.
9. In opposition to the instant application, the 3rd respondent filed a replying affidavit sworn on 14/4/2025 by David Odhiambo, its project manager.
10. He stated that the applicants and the 3rd respondent entered into a construction contract in October 2020 valued at KShs 35,576,869, which was initially to be financed by KCB bank but later changed to self-financing, causing a delay.
11. That the project commenced in January 2021, but on 31/5/2024 the applicants forcibly removed the 3rd respondent from the site under police watch. Attempts at amicable settlement failed, leading to a formal demand and subsequent invocation of clause 45 of the agreement.
12. He deponed that the applicants had suggested names of advocates as arbitrators, which the 3rd respondent rejected, instead proposing individuals with technical expertise in construction. No consensus was reached, and by a letter of 7/1/2025, the 3rd respondent requested the Architectural Association of Kenya to appoint an arbitrator. Upon receiving proof of dispute and payment, the association appointed the 2nd respondent on 7/2/2025.
13. He contended that the applicants’ claim that the process had just begun was insincere and maintained that the appointment was proper and regular. He concluded that the application was intended to delay the arbitration and urged the court to dismiss it with costs.
14. The 1st applicant swore a further affidavit opposing the replying affidavits of the 2nd and 3rd respondents. He maintained that the application was properly grounded under section 14 of the Arbitration Act, as the applicants had protested the appointment of the 2nd respondent, who nevertheless rejected the challenge and threatened to proceed ex parte.
15. He asserted that by so acting, the 2nd respondent lost jurisdiction and demonstrated bias and partiality, rendering the arbitration null and void ab initio.
16. He further contended that the appointment of the 2nd respondent was invalid as the applicants were excluded from the process, with the 1st and 3rd respondents conspiring in secrecy. He disputed the 3rd respondent’s account of the appointment process, arguing that parties had instead agreed to pursue an amicable settlement, thereby abandoning arbitration. He accused the 3rd respondent of material non-disclosure intended to mislead the court and emphasised that the applicants were denied consensus, fair hearing, and equal treatment as required under sections 14 and 19 of the Arbitration Act and principles of natural justice.
17. The 3rd respondent’s project manager, David Odhiambo, swore a further affidavit in response to the applicants’ further affidavit dated 29/4/2025. He stated that a demand letter dated 9/9/2024 had been duly served on the applicants, notifying them of the dispute, and that it was insincere for them to allege otherwise when they had proceeded to suggest names of arbitrators. He deponed that the applicants were unwilling to settle the matter amicably or to discuss the appointment of an arbitrator, as shown in their letter of 17/12/2024, indicating readiness to receive pleadings.
18. He argued that natural justice also required speedy resolution of disputes, which the applicants frustrated by causing delays in the appointment process. He added that the 1st respondent was only engaged as a last resort after parties failed to agree on an arbitrator, and that the applicants had been involved in earlier attempts at consensus. He concluded that the application is without merit and should be dismissed with costs.
Analysis and determination
19. The applicants, 2nd respondent and 3rd respondent filed written submissions dated 29/4/2025, 19/5/2025 and 19/5/2025 respectively. I have considered the same together with the pleadings filed by the parties in this matter.
20. The first issue for determination is whether the application before this court is premature.
21. The 2nd and 3rd respondents contended that the application is premature and incompetent in view of the fact that it does not comply with the challenge procedure envisaged under section 14 and the jurisdiction of an arbitral tribunal under section 17 of the Arbitration Act.
22. The applicants, on the other hand, submitted that they complied with section 14 of the Arbitration Act and that the 2nd respondent’s averments are unsubstantiated.
23. Section 14 (1)-(3) of the Arbitration Act provides as follows:-
“14. (1) Subject to subsection (3), the parties are free to agree on a procedure for challenging an arbitrator.
(2) Failing an agreement under subsection (1), a party who intends to challenge an arbitrator shall, within fifteen days after becoming aware of the composition of the arbitral tribunal or after becoming aware of any circumstances referred to in section 13 (3), send a written statement of the reasons for the challenge to the arbitral tribunal, and unless the arbitrator who is being challenged withdraws from his office or the other party agrees to the challenge, the arbitral tribunal shall decide on the challenge.
(3) If a challenge under agreed procedure or under subsection (2) is unsuccessful, the challenging party may, within thirty days after being notified of the decision to reject the challenge, apply to the High Court to determine the matter.”
24. In Dhanjal Investments Limited v Kenindia Assurance Company Limited (Petition of Appeal 7 of 2016) [2018] KESC 16 (KLR) (20 November 2018) (Judgment), the Supreme Court clarified that section 14(2) only relates to the procedure for challenging arbitrators and should be read alongside section 13, which sets out the grounds for such a challenge, namely impartiality, independence, and qualifications of the arbitrator. The Court held that unless these grounds are raised, section 14(2) would not apply. The Court at paragraph 56 of its Judgment, stated as follows:
“On section 14, since parties had not agreed on the appointment of the arbitrator, they cannot have agreed on the challenge procedure. For avoidance of doubt section 14(2) of the Arbitration Act provides: Failing an agreement under sub section (1), a party who intends to challenge an arbitrator shall, within 15 days after becoming aware of the composition of the arbitral tribunal or after becoming aware of any circumstances referred to in section 13(3), send a written statement of the reasons for the challenge to the arbitral tribunal, and unless the arbitrator who is being challenged withdraws from his office or the other party agrees to the challenge, the arbitral tribunal shall decide on the challenge.” The above provision only relates to the procedure for challenging arbitration proceedings and should be read alongside section 13 which contains the grounds for any such challenge. These grounds relate to impartiality and independence of the arbitrator as well as the qualifications of an arbitrator as set by parties. There is no indication whatsoever that the respondent had grievances in these respects towards the arbitrator and with respect, we do not think that section 14(2) applies to the present dispute.”
25. A similar position was arrived at in Nairobi Properties Limited v Africa Medicity Limited & another (Miscellaneous Application E030 of 2022) [2023] KEHC 2741 (KLR) (Commercial and Tax) (27 January 2023) (Ruling), where the High Court stated as follows:
“ I agree with the Applicant that the mandate of an arbitrator can indeed be terminated either on his removal after a successful challenge under section 14 of the Arbitration Act or due to failure or impossibility to act as provided in section 15 of the Arbitration Act. However, any party that seeks to challenge an arbitrator under section 13(3), that is, owing to circumstances that give rise to justifiable doubts as to his impartiality and independence, or if he does not possess qualifications agreed to by the parties or if he is physically or mentally incapable of conducting the proceedings or there are justifiable doubts as to his capacity to do so, can only lodge that challenge first, before the Arbitrator, before approaching the court. This is provided for by section 14(3) of the Arbitration Act which provides that ‘If a challenge under agreed procedure or under subsection (2) is unsuccessful, the challenging party may, within 30 days after being notified of the decision to reject the challenge, apply to the High Court to determine the matter.”
26. In the present case, it is not in dispute that the applicants and 3rd respondent had entered into a contract for the construction of a residential property. A dispute arose between the parties which they were unable to resolve amicably.
27. By a letter dated 23/9/2023, the 3rd respondent invoked clause 45 of the contract, referring the dispute to arbitration.
28. The parties exchanged proposals on possible arbitrators but failed to agree on one.
29. Consequently, the 3rd respondent sought the appointment of a sole arbitrator by the 1st respondent, following which the 2nd respondent was appointed as arbitrator.
30. The applicants state that they were abruptly notified of this appointment through a letter dated 18/2/2025 and were aggrieved, alleging that the appointment was made in opaque circumstances that excluded them from the process.
31. By a letter dated 25/2/2025, the applicants wrote to the 1st and 2nd respondents objecting to the procedure of appointment. The 2nd respondent, in turn, acknowledged the objection, cancelled a scheduled preliminary meeting, and invited the 3rd respondent to respond to the objection.
32. On 25/3/2025, the 2nd respondent again wrote to the applicants, noting their protests but indicated that the issues raised would be addressed within the arbitration proceedings.
33. From the correspondence, it is clear that the applicants did raise an objection to the appointment of the 2nd respondent as arbitrator. However, the 2nd respondent has not yet rendered a decision on that objection, having deferred it to the arbitral process itself.
34. Under section 14 of the Arbitration Act, and as affirmed in the cited authorities, the question of removal of an arbitrator must first be determined by the arbitrator himself. Only if that challenge fails may the matter be escalated to this Court.
35. In this case, the arbitrator has not had an opportunity to decide on the objection raised by the applicants. It follows that the present application is premature, and this Court cannot entertain its merits at this stage.
36. I accordingly direct the 2nd respondent to promptly deliver a decision on the applicants’ challenge to his appointment.
37. On this ground alone, I dismiss the instant application. However, in view of the pending arbitration proceedings, I direct that each party to bear their own costs of this application.
38. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
25TH SEPTEMBER 2025
ADO MOSES
JUDGE
In the presence of: -
C/A – Moses
Olao.……….………..for the Applicant
Owino h/b for Wafuna….... for the 3rd Respondent
Okeyo h/b for Nyaribo…..for the 2nd Respondent
'
2. The applicants explained that in October 2020, they awarded the 3rd respondent a contract worth Kshs. 35,576,869 for the construction of a residential house on L.R. No. Ngong/Ngong/96934. The project, scheduled for completion in July 2021, stalled due to mismanagement, breach of contract and misrepresentation by the 3rd respondent.
3. Disputes arose, and although parties attempted amicable settlement, the 3rd respondent invoked clause 45 of the contract providing for arbitration (referral to, and appointment of arbitrators) in case of disputes between the parties. Both sides exchanged proposals of arbitrators, but no agreement had been reached.
4. On 18/2/2025, the applicants state that they received a communication from the 2nd respondent that he had been appointed sole arbitrator by the 1st respondent. The Applicants state that this was done without their knowledge or consent. The applicants objected, noting that no notice of dispute had been issued and the procedure under clause 45 had not been followed. Despite their objections, the 2nd respondent continued to act.
5. The applicants argued that the appointment was opaque, lacked transparency, and created a risk of bias given the professional connections between the 2nd and 3rd respondents. They contended that unless the court intervened to stay the proceedings and appoint a new arbitrator, they would suffer prejudice and injustice.
2nd Respondent’s opposition
6. The 2nd respondent opposed the subject application vide a replying affidavit and grounds of opposition both dated 22/4/2025.
7. The 2nd respondent averred that he was the sole arbitrator appointed under clause 45 of the agreement between the applicants and the 3rd respondent. He confirmed that he had not undertaken any steps in the arbitration save for proposing a preliminary meeting, which did not take place owing to the applicants’ objection to his appointment.
8. The 2nd respondent affirmed his independence, impartiality, and commitment to conduct the arbitration in accordance with the law and natural justice. He further deponed that the application was premature and sought to usurp the arbitrator’s decision-making authority contrary to the competence-competence principle.
3rd respondent’s opposition.
9. In opposition to the instant application, the 3rd respondent filed a replying affidavit sworn on 14/4/2025 by David Odhiambo, its project manager.
10. He stated that the applicants and the 3rd respondent entered into a construction contract in October 2020 valued at KShs 35,576,869, which was initially to be financed by KCB bank but later changed to self-financing, causing a delay.
11. That the project commenced in January 2021, but on 31/5/2024 the applicants forcibly removed the 3rd respondent from the site under police watch. Attempts at amicable settlement failed, leading to a formal demand and subsequent invocation of clause 45 of the agreement.
12. He deponed that the applicants had suggested names of advocates as arbitrators, which the 3rd respondent rejected, instead proposing individuals with technical expertise in construction. No consensus was reached, and by a letter of 7/1/2025, the 3rd respondent requested the Architectural Association of Kenya to appoint an arbitrator. Upon receiving proof of dispute and payment, the association appointed the 2nd respondent on 7/2/2025.
13. He contended that the applicants’ claim that the process had just begun was insincere and maintained that the appointment was proper and regular. He concluded that the application was intended to delay the arbitration and urged the court to dismiss it with costs.
14. The 1st applicant swore a further affidavit opposing the replying affidavits of the 2nd and 3rd respondents. He maintained that the application was properly grounded under section 14 of the Arbitration Act, as the applicants had protested the appointment of the 2nd respondent, who nevertheless rejected the challenge and threatened to proceed ex parte.
15. He asserted that by so acting, the 2nd respondent lost jurisdiction and demonstrated bias and partiality, rendering the arbitration null and void ab initio.
16. He further contended that the appointment of the 2nd respondent was invalid as the applicants were excluded from the process, with the 1st and 3rd respondents conspiring in secrecy. He disputed the 3rd respondent’s account of the appointment process, arguing that parties had instead agreed to pursue an amicable settlement, thereby abandoning arbitration. He accused the 3rd respondent of material non-disclosure intended to mislead the court and emphasised that the applicants were denied consensus, fair hearing, and equal treatment as required under sections 14 and 19 of the Arbitration Act and principles of natural justice.
17. The 3rd respondent’s project manager, David Odhiambo, swore a further affidavit in response to the applicants’ further affidavit dated 29/4/2025. He stated that a demand letter dated 9/9/2024 had been duly served on the applicants, notifying them of the dispute, and that it was insincere for them to allege otherwise when they had proceeded to suggest names of arbitrators. He deponed that the applicants were unwilling to settle the matter amicably or to discuss the appointment of an arbitrator, as shown in their letter of 17/12/2024, indicating readiness to receive pleadings.
18. He argued that natural justice also required speedy resolution of disputes, which the applicants frustrated by causing delays in the appointment process. He added that the 1st respondent was only engaged as a last resort after parties failed to agree on an arbitrator, and that the applicants had been involved in earlier attempts at consensus. He concluded that the application is without merit and should be dismissed with costs.
Analysis and determination
19. The applicants, 2nd respondent and 3rd respondent filed written submissions dated 29/4/2025, 19/5/2025 and 19/5/2025 respectively. I have considered the same together with the pleadings filed by the parties in this matter.
20. The first issue for determination is whether the application before this court is premature.
21. The 2nd and 3rd respondents contended that the application is premature and incompetent in view of the fact that it does not comply with the challenge procedure envisaged under section 14 and the jurisdiction of an arbitral tribunal under section 17 of the Arbitration Act.
22. The applicants, on the other hand, submitted that they complied with section 14 of the Arbitration Act and that the 2nd respondent’s averments are unsubstantiated.
23. Section 14 (1)-(3) of the Arbitration Act provides as follows:-
“14. (1) Subject to subsection (3), the parties are free to agree on a procedure for challenging an arbitrator.
(2) Failing an agreement under subsection (1), a party who intends to challenge an arbitrator shall, within fifteen days after becoming aware of the composition of the arbitral tribunal or after becoming aware of any circumstances referred to in section 13 (3), send a written statement of the reasons for the challenge to the arbitral tribunal, and unless the arbitrator who is being challenged withdraws from his office or the other party agrees to the challenge, the arbitral tribunal shall decide on the challenge.
(3) If a challenge under agreed procedure or under subsection (2) is unsuccessful, the challenging party may, within thirty days after being notified of the decision to reject the challenge, apply to the High Court to determine the matter.”
24. In Dhanjal Investments Limited v Kenindia Assurance Company Limited (Petition of Appeal 7 of 2016) [2018] KESC 16 (KLR) (20 November 2018) (Judgment), the Supreme Court clarified that section 14(2) only relates to the procedure for challenging arbitrators and should be read alongside section 13, which sets out the grounds for such a challenge, namely impartiality, independence, and qualifications of the arbitrator. The Court held that unless these grounds are raised, section 14(2) would not apply. The Court at paragraph 56 of its Judgment, stated as follows:
“On section 14, since parties had not agreed on the appointment of the arbitrator, they cannot have agreed on the challenge procedure. For avoidance of doubt section 14(2) of the Arbitration Act provides: Failing an agreement under sub section (1), a party who intends to challenge an arbitrator shall, within 15 days after becoming aware of the composition of the arbitral tribunal or after becoming aware of any circumstances referred to in section 13(3), send a written statement of the reasons for the challenge to the arbitral tribunal, and unless the arbitrator who is being challenged withdraws from his office or the other party agrees to the challenge, the arbitral tribunal shall decide on the challenge.” The above provision only relates to the procedure for challenging arbitration proceedings and should be read alongside section 13 which contains the grounds for any such challenge. These grounds relate to impartiality and independence of the arbitrator as well as the qualifications of an arbitrator as set by parties. There is no indication whatsoever that the respondent had grievances in these respects towards the arbitrator and with respect, we do not think that section 14(2) applies to the present dispute.”
25. A similar position was arrived at in Nairobi Properties Limited v Africa Medicity Limited & another (Miscellaneous Application E030 of 2022) [2023] KEHC 2741 (KLR) (Commercial and Tax) (27 January 2023) (Ruling), where the High Court stated as follows:
“ I agree with the Applicant that the mandate of an arbitrator can indeed be terminated either on his removal after a successful challenge under section 14 of the Arbitration Act or due to failure or impossibility to act as provided in section 15 of the Arbitration Act. However, any party that seeks to challenge an arbitrator under section 13(3), that is, owing to circumstances that give rise to justifiable doubts as to his impartiality and independence, or if he does not possess qualifications agreed to by the parties or if he is physically or mentally incapable of conducting the proceedings or there are justifiable doubts as to his capacity to do so, can only lodge that challenge first, before the Arbitrator, before approaching the court. This is provided for by section 14(3) of the Arbitration Act which provides that ‘If a challenge under agreed procedure or under subsection (2) is unsuccessful, the challenging party may, within 30 days after being notified of the decision to reject the challenge, apply to the High Court to determine the matter.”
26. In the present case, it is not in dispute that the applicants and 3rd respondent had entered into a contract for the construction of a residential property. A dispute arose between the parties which they were unable to resolve amicably.
27. By a letter dated 23/9/2023, the 3rd respondent invoked clause 45 of the contract, referring the dispute to arbitration.
28. The parties exchanged proposals on possible arbitrators but failed to agree on one.
29. Consequently, the 3rd respondent sought the appointment of a sole arbitrator by the 1st respondent, following which the 2nd respondent was appointed as arbitrator.
30. The applicants state that they were abruptly notified of this appointment through a letter dated 18/2/2025 and were aggrieved, alleging that the appointment was made in opaque circumstances that excluded them from the process.
31. By a letter dated 25/2/2025, the applicants wrote to the 1st and 2nd respondents objecting to the procedure of appointment. The 2nd respondent, in turn, acknowledged the objection, cancelled a scheduled preliminary meeting, and invited the 3rd respondent to respond to the objection.
32. On 25/3/2025, the 2nd respondent again wrote to the applicants, noting their protests but indicated that the issues raised would be addressed within the arbitration proceedings.
33. From the correspondence, it is clear that the applicants did raise an objection to the appointment of the 2nd respondent as arbitrator. However, the 2nd respondent has not yet rendered a decision on that objection, having deferred it to the arbitral process itself.
34. Under section 14 of the Arbitration Act, and as affirmed in the cited authorities, the question of removal of an arbitrator must first be determined by the arbitrator himself. Only if that challenge fails may the matter be escalated to this Court.
35. In this case, the arbitrator has not had an opportunity to decide on the objection raised by the applicants. It follows that the present application is premature, and this Court cannot entertain its merits at this stage.
36. I accordingly direct the 2nd respondent to promptly deliver a decision on the applicants’ challenge to his appointment.
37. On this ground alone, I dismiss the instant application. However, in view of the pending arbitration proceedings, I direct that each party to bear their own costs of this application.
38. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
25TH SEPTEMBER 2025
ADO MOSES
JUDGE
In the presence of: -
C/A – Moses
Olao.……….………..for the Applicant
Owino h/b for Wafuna….... for the 3rd Respondent
Okeyo h/b for Nyaribo…..for the 2nd Respondent
'