' RULING
1. This is a Ruling is in respect of an application dated 23.7.2025 under a Certificate of Urgency by way of Notice of Motion dated 23.7.20205. It is supported by an affidavit in support by one SHARON CHEPKORIR MWEI sworn on 23.7.2025.
2. The Applicant seeks the following prayers:
1) THAT this Honourable Court be pleased to refer the matter to Arbitration and direct that the Chairperson of the Chartered Institute of Arbitrators Kenya Branch to proceed and appoint a Sole Arbitrator within 14 days to hear and determine the dispute herein.
2) THAT the Court may grant any further orders that it deems necessary in furthering the cause of justice.
3) THAT the costs of this application be borne by the Respondent.
Background Facts
3. The Applicant is a firm engaged in the supply of fuel and fuel products. The Respondent was its customer. They entered into a contract for supply of fuel at any of the Applicant’s fuel stations thought Kenya. This was through the use of a fuel card known as Ola Energy Kenya Limited O’ card.
4. To facilitate this arrangement, the Respondent was to issue a security. This was by way of a financial guarantee in form of reimbursable cash deposit, bank guarantee or other financial instrument acceptable to the Applicant. Accordingly, the Respondent issued to the Applicant a bank guarantee from Africa Banking Corporation Ltd (“ABC Bank”) valued at Ksh.880,000/=.
5. The Respondent proceeded to utilize fuel at various stations and the Applicant raised various invoiced to that effect.
6. This account fell into arrears. Demands were made for the sum of Ksh.1,391,930.96. the Respondent disputed a total sum of Ksh1,110,517.000. The issue was not resolved amicably.
7. This led to the Applicant calling upon the Respondent to settle the claimed amount. In absence of payment the Applicant has sought that this matter be referred to Arbitration. This was the intention of the parties as per the contract.
8. The Arbitration clause does not contain a clause for the manner of the appointment of an Arbitrator. Hence the reason the Applicant has resolved to come to the Court for assistance.
9. The Application is not opposed by the Respondent who did not appear despite service.
Issues for Determination
10. The Court frames a single issue for determination:
a) Whether the Court should direct the chairman of the Chartered Institute of Arbitrators Kenya Branch to appoint an Arbitrator in this matter.
Analysis
11. The Applicant seeks aid of Section 7 of the Arbitration Act which states as follows:
7. Interim measures by court
(1) It is not incompatible with an arbitration agreement for a party to request from the High Court, before or during arbitral proceedings, an interim measure of protection and for the High Court to grant that measure.
(2) Where a party applies to the High Court for an injunction or other interim order and the arbitral tribunal has already ruled on any matter relevant to the application, the High Court shall treat the ruling or any finding of fact made in the course of the ruling as conclusive for the purposes of the application.
12. The Applicant has also relied on Section 12 of the Arbitration Act which states as follows;
12. Appointment of arbitrators
(1) No person shall be precluded by reason of that person’s nationality from acting as an arbitrator, unless otherwise agreed by the parties.
(2) The parties are free to agree on a procedure of appointing the arbitrator or arbitrators and any chairman and failing such agreement—
(a) in an arbitration with three arbitrators, each party shall appoint one arbitrator and the two arbitrators so appointed shall appoint the arbitrator;
(b) in an arbitration with two arbitrators, each party shall appoint one arbitrator; and
(c) in an arbitration with one arbitrator, the parties shall agree on the arbitrator to be appointed.
(3) Unless the parties otherwise agree, where each of two parties to an arbitration agreement is to appoint an arbitrator and one party ("the party in default")—
(a) has indicated that he is unwilling to do so;
(b) fails to do so within the time allowed under the arbitration agreement; or
(c) fails to do so within fourteen days (where the arbitration agreement does not limit the time within which an arbitrator must be appointed by a party), the other party, having duly
appointed an arbitrator, may give notice in writing to the party in default that he proposes to appoint his arbitrator to act as sole arbitrator.
(4) If the party in default does not, within fourteen days after notice under subsection (3) has been given —
(a) make the required appointment; and
(b) notify the other party that he has done so, the other party may appoint his arbitrator as sole
arbitrator, and the award of that arbitrator shall be binding on both parties as if he had been so appointed by agreement.
(5) Where a sole arbitrator has been appointed under subsection (4), the party in default may, upon notice to the other party, apply to the High Court within fourteen days to have the appointment set aside.
(6) The High Court may grant an application under subsection (5) only if it is satisfied that there was good cause for the failure or refusal of the party in default to appoint his arbitrator in due time.
(7) The High Court, if it grants an application under subsection (5), may, by consent of the parties or on the application of either party, appoint a sole arbitrator.
(8) A decision of the High Court in respect of a matter under this section shall be final and not be subject to appeal.
(9) The High Court in appointing an arbitrator shall have due regard to any qualifications required of an arbitrator by the agreement of the parties and to such considerations as are likely to secure the appointment of an independent and impartial arbitrator and, in the case of a sole or third arbitrator, shall take into account the advisability of appointing an arbitrator of a nationality other than those of the parties.
a) Whether the Court should direct the chairman of the Chartered Institute of Arbitrators Kenya Branch to appoint an Arbitrator in this matter.
13. The Applicant lists out instances in which it has engaged the Respondent to agree on the appointment of an Arbitrator. This has been met by silence. The Applicant depones as follows:
“THAT as will be noted from the contents of the demand letter, the Respondent was informed that, owing to the value of the amount being claimed, it would not be commercially prudent to pursue arbitration due to the associated costs implications.
Accordingly, the Respondent was requested to confirm in writing its consent to waive the Arbitration Clause.
THAT on 7th June 2025, the Respondent’s Advocate responded to the demand letter and, in substance, denied that the Respondent owed the Applicant any money. The Respondent’s Advocate further issued a counter demand, indicating their intention to claim Ksh.1,110,518 and general damages for alleged breach of contract.
THAT on 16th June 2025, the Applicant’s Advocate wrote to the Respondent’s Advocates acknowledging the existence of a dispute and reiterating the proposal to waive the arbitration clause. In the alternative the Applicant proposed the Appointment of Mr. Jared Mituga of Mituga & Associates Advocates as sole Arbitrator. Further, and in the event the parties could not agree on the appointment, the Applicant’s Advocates proposed that an Arbitrator be appointed by the Chairperson of the Chartered Institute of Arbitrators.
THAT said letter did not elicit any response from the Respondent’s Advocates. Consequently, a follow up email was sent on 1st July 2025 advising that, in absence of a response, the Applicant would proceed to move the High Court for orders directing that an arbitrator be appointed by the Chairperson of the Chartered Institute of Arbitrators.”
14. The Court has reproduced the averments by the deponent to show that there is no agreement on the manner of appointing of an Arbitrator. The parties may have agreed or signed on to a general agreement that provided for an Arbitral Clause. However, they did not provide for the manner in which that process would be invoked.
15. The Arbitral Clause states as follows:
“14.7.3 Any dispute which cannot be resolved within 14 days after receipt by one party of the other party’s request for such amicable settlement shall be submitted by each party to an Arbitrator in accordance with the Arbitration Act, Act No. 4 of 1995 as amended from time to time.
14.7.4 The place of Arbitration shall be Nairobi. The Arbitration proceedings including hearings, document submissions and award shall be in English and all the Arbitrators shall be fluent in English language.”
16. In absence of an agreement as to how the Arbitrator would be appointed, the Applicant proposed the name of an Arbitrator. This did not elicit any response from the Respondent.
17. One of the underlying principles in Arbitration is party autonomy. Indeed Section 10 of the Arbitration Act limits the extent of the Courts intervention in matters Arbitration.
10. Extent of court intervention
Except as provided in this Act, no court shall intervene in matters governed by this Act
18. Looking at the application before the Court, a dispute has arisen. The Respondent has signalled that it too wishes to Counter-claim against the Applicant. The question that vexes the Court is whether it should assume the duty and responsibility of appointing the Arbitrator. Looking at the Arbitral clause, this power was not reserved for the Court. The parties assumed that once a dispute arose, they would proceed to Arbitration. They also assumed they would be able to agree on the appointment of that Arbitrator. Therefore, was no consensus on who the Arbitrator should be. There was no consensus on how the Arbitrator would be appointed if the parties could not agree on one. Certainly, they did not provide for what would happen if one party showed some disdain or ignored the arbitration route.
19. The Courts have dealt with similar applications. In Danki Ventures Limited v Sinopec International Petroleum Services Limited [2014] KEHC 8319 (KLR). Justice Fred Ochieng (as he then was) declined to allow a similar application stating as follows;
“If the parties wished to have that chairman as the person mandated to appoint the arbitrator, they could have said so expressly.
As the organization whose chairman could have appointed an arbitrator was not identified by the arbitrators, that renders the arbitral clause inoperative.
If the court wrote into the contract, so that it was the chairman of the Chartered Institute of Arbitrators who become mandated to appoint an arbitrator, then the court would have written into the arbitral clause a very substantive clause without knowing whether the parties would have wished to have that chairman or if the parties would have preferred the chairman of a totally different entity.
The court cannot impose on the parties either a particular arbitrator or a method for choosing the arbitrator.
In the event, as the arbitral clause is inoperative, I reject the defendant’s application to refer the case to arbitration.”
20. In Wanjala & 2 others v Registrar of Companies & 2 others; Okoa Finance Limited (Interested Party) [2022] KEHC 48 (KLR) Majanja J was of a similar view stating as follows;
“As I have stated, the Arbitration Act proceeds from the position that the arbitration process is consensual and court intervention is only necessary to assist the parties carry out their stated intention crystallized in the arbitration agreement. Hence section 12 of the Arbitration Act dealing with appointment of arbitrators, does not supplant the parties’ right to appoint or prescribe the mode of appointment of the arbitrator but only sets out a default procedure for the court to intervene should the either fail to comply with the contractual provisions for appointment of an arbitrator. The court can only intervene in matters appointment if the agreement provides for appointment and either party fails to comply with the agreement. In this case, the arbitration clause does not provide for appointment of an arbitrator or process for such appointment hence the court cannot re-write the parties’ agreement by taking upon itself to appoint an arbitrator.”
21. In Pitstop Technologies Limited v Dynamic Branding Ventures Limited [2020] KEHC 2768 (KLR) Majanja J reiterated the same position with clarity as follows;
"4. Section 12 of the Act recognises party autonomy by giving each party an opportunity to participate in the appointment of the arbitrator. This arbitration clause in the Agreement contemplates the appointment of a sole arbitrator hence under section 12(2) of the Act, the parties are required to agree on the arbitrator. Section 12(3) of the Act goes on to provide what happens when a party defaults or does not participate in the appointment. Section 12(4) then stipulates that once notice has been given to the other party, the party not in default may appoint the sole arbitrator and the arbitrator so appointed shall determine the matter and make a binding award.
5. At this stage, it is important to point out that the High Court is not involved in the process of appointment of an arbitrator where one party has defaulted. In line with the principle of party autonomy, the process remains in the parties’ hands. It is only after the party has made an appointment under section 12(4) of the Act, that the party in default is entitled to move the High Court to set aside that appointment. This section buttresses the fact that the party who is not in default is entitled to make an appointment. It is only after the High Court has dealt with the application to set aside the appointment and allowed the application, that it may, by consent of the parties or on the application of either party appoint a sole arbitrator.
6. The process as outlined in section 12 of the Act does not give the High Court original jurisdiction to appoint an arbitrator when the other party is in default. Further section 12(9) of the Act which the Applicant has been invoked does not apply to the circumstances of this case. The Summons is therefore premature as the process appointment is still in the applicant’s hands (see also Wachiuri Wahome t/a Adili Communications v Kenya Automotive Repairers Association ML HC No. 1057 of 2010 [2011] eKLR and Trustees, Tourism Promotion Services Staff Pension Scheme v Genafrica Asset Managers ML HC No. 161 of 2018 (OS) [2019] eKLR).”
22. This Court is not persuaded by the Applicant that it should interfere and direct on the appointment of an Arbitrator or direct the Chairperson of the Chartered Institute of Arbitrators Kenya Branch to appoint one. Borrowing from Section 12 of the Act and the decision of Majanja J . in Pitstop Technologies Limited v Dynamic Branding Ventures Limited [2020] KEHC 2768 (KLR) , the Applicant who is the party who is not in default should proceed to appoint an Arbitrator. If there is no objection to the appointment, the Arbitral proceedings should then commence. If there is an objection, the matter will find its way into our Courts for determination on an application for setting aside such an appointment. As matters now stand, the Application is premature.
23. The Application is declined. As to costs, there will be no orders as to costs as the application is unopposed.
24. The Originating Summons filed dated 23rd July, 2025 seeks the very same orders. Nothing will be gained by keeping it, as well as this file alive. It too suffers the same fate as the Motion.
Determination
25. The Application by way of a Notice of Motion dated 23rd July, 2025 is dismissed for lack of merits with no orders as to costs.
26. Equally the Originating Summons dated 23rd July is also dismissed with no orders as to costs.
27. It is so ordered.
28. The file is marked as closed.
DATED, SIGNED AND DELIVERED AT MILIMANI THIS 16TH DAY OF OCTOBER, 2025.
NJOROGE BENJAMIN K.
JUDGE
In the presence of;
Miss Kabura for Claimant/Applicant
N/A for the Respondent.
Mr. Peter Wabwire - Court Assistant.
'
1. This is a Ruling is in respect of an application dated 23.7.2025 under a Certificate of Urgency by way of Notice of Motion dated 23.7.20205. It is supported by an affidavit in support by one SHARON CHEPKORIR MWEI sworn on 23.7.2025.
2. The Applicant seeks the following prayers:
1) THAT this Honourable Court be pleased to refer the matter to Arbitration and direct that the Chairperson of the Chartered Institute of Arbitrators Kenya Branch to proceed and appoint a Sole Arbitrator within 14 days to hear and determine the dispute herein.
2) THAT the Court may grant any further orders that it deems necessary in furthering the cause of justice.
3) THAT the costs of this application be borne by the Respondent.
Background Facts
3. The Applicant is a firm engaged in the supply of fuel and fuel products. The Respondent was its customer. They entered into a contract for supply of fuel at any of the Applicant’s fuel stations thought Kenya. This was through the use of a fuel card known as Ola Energy Kenya Limited O’ card.
4. To facilitate this arrangement, the Respondent was to issue a security. This was by way of a financial guarantee in form of reimbursable cash deposit, bank guarantee or other financial instrument acceptable to the Applicant. Accordingly, the Respondent issued to the Applicant a bank guarantee from Africa Banking Corporation Ltd (“ABC Bank”) valued at Ksh.880,000/=.
5. The Respondent proceeded to utilize fuel at various stations and the Applicant raised various invoiced to that effect.
6. This account fell into arrears. Demands were made for the sum of Ksh.1,391,930.96. the Respondent disputed a total sum of Ksh1,110,517.000. The issue was not resolved amicably.
7. This led to the Applicant calling upon the Respondent to settle the claimed amount. In absence of payment the Applicant has sought that this matter be referred to Arbitration. This was the intention of the parties as per the contract.
8. The Arbitration clause does not contain a clause for the manner of the appointment of an Arbitrator. Hence the reason the Applicant has resolved to come to the Court for assistance.
9. The Application is not opposed by the Respondent who did not appear despite service.
Issues for Determination
10. The Court frames a single issue for determination:
a) Whether the Court should direct the chairman of the Chartered Institute of Arbitrators Kenya Branch to appoint an Arbitrator in this matter.
Analysis
11. The Applicant seeks aid of Section 7 of the Arbitration Act which states as follows:
7. Interim measures by court
(1) It is not incompatible with an arbitration agreement for a party to request from the High Court, before or during arbitral proceedings, an interim measure of protection and for the High Court to grant that measure.
(2) Where a party applies to the High Court for an injunction or other interim order and the arbitral tribunal has already ruled on any matter relevant to the application, the High Court shall treat the ruling or any finding of fact made in the course of the ruling as conclusive for the purposes of the application.
12. The Applicant has also relied on Section 12 of the Arbitration Act which states as follows;
12. Appointment of arbitrators
(1) No person shall be precluded by reason of that person’s nationality from acting as an arbitrator, unless otherwise agreed by the parties.
(2) The parties are free to agree on a procedure of appointing the arbitrator or arbitrators and any chairman and failing such agreement—
(a) in an arbitration with three arbitrators, each party shall appoint one arbitrator and the two arbitrators so appointed shall appoint the arbitrator;
(b) in an arbitration with two arbitrators, each party shall appoint one arbitrator; and
(c) in an arbitration with one arbitrator, the parties shall agree on the arbitrator to be appointed.
(3) Unless the parties otherwise agree, where each of two parties to an arbitration agreement is to appoint an arbitrator and one party ("the party in default")—
(a) has indicated that he is unwilling to do so;
(b) fails to do so within the time allowed under the arbitration agreement; or
(c) fails to do so within fourteen days (where the arbitration agreement does not limit the time within which an arbitrator must be appointed by a party), the other party, having duly
appointed an arbitrator, may give notice in writing to the party in default that he proposes to appoint his arbitrator to act as sole arbitrator.
(4) If the party in default does not, within fourteen days after notice under subsection (3) has been given —
(a) make the required appointment; and
(b) notify the other party that he has done so, the other party may appoint his arbitrator as sole
arbitrator, and the award of that arbitrator shall be binding on both parties as if he had been so appointed by agreement.
(5) Where a sole arbitrator has been appointed under subsection (4), the party in default may, upon notice to the other party, apply to the High Court within fourteen days to have the appointment set aside.
(6) The High Court may grant an application under subsection (5) only if it is satisfied that there was good cause for the failure or refusal of the party in default to appoint his arbitrator in due time.
(7) The High Court, if it grants an application under subsection (5), may, by consent of the parties or on the application of either party, appoint a sole arbitrator.
(8) A decision of the High Court in respect of a matter under this section shall be final and not be subject to appeal.
(9) The High Court in appointing an arbitrator shall have due regard to any qualifications required of an arbitrator by the agreement of the parties and to such considerations as are likely to secure the appointment of an independent and impartial arbitrator and, in the case of a sole or third arbitrator, shall take into account the advisability of appointing an arbitrator of a nationality other than those of the parties.
a) Whether the Court should direct the chairman of the Chartered Institute of Arbitrators Kenya Branch to appoint an Arbitrator in this matter.
13. The Applicant lists out instances in which it has engaged the Respondent to agree on the appointment of an Arbitrator. This has been met by silence. The Applicant depones as follows:
“THAT as will be noted from the contents of the demand letter, the Respondent was informed that, owing to the value of the amount being claimed, it would not be commercially prudent to pursue arbitration due to the associated costs implications.
Accordingly, the Respondent was requested to confirm in writing its consent to waive the Arbitration Clause.
THAT on 7th June 2025, the Respondent’s Advocate responded to the demand letter and, in substance, denied that the Respondent owed the Applicant any money. The Respondent’s Advocate further issued a counter demand, indicating their intention to claim Ksh.1,110,518 and general damages for alleged breach of contract.
THAT on 16th June 2025, the Applicant’s Advocate wrote to the Respondent’s Advocates acknowledging the existence of a dispute and reiterating the proposal to waive the arbitration clause. In the alternative the Applicant proposed the Appointment of Mr. Jared Mituga of Mituga & Associates Advocates as sole Arbitrator. Further, and in the event the parties could not agree on the appointment, the Applicant’s Advocates proposed that an Arbitrator be appointed by the Chairperson of the Chartered Institute of Arbitrators.
THAT said letter did not elicit any response from the Respondent’s Advocates. Consequently, a follow up email was sent on 1st July 2025 advising that, in absence of a response, the Applicant would proceed to move the High Court for orders directing that an arbitrator be appointed by the Chairperson of the Chartered Institute of Arbitrators.”
14. The Court has reproduced the averments by the deponent to show that there is no agreement on the manner of appointing of an Arbitrator. The parties may have agreed or signed on to a general agreement that provided for an Arbitral Clause. However, they did not provide for the manner in which that process would be invoked.
15. The Arbitral Clause states as follows:
“14.7.3 Any dispute which cannot be resolved within 14 days after receipt by one party of the other party’s request for such amicable settlement shall be submitted by each party to an Arbitrator in accordance with the Arbitration Act, Act No. 4 of 1995 as amended from time to time.
14.7.4 The place of Arbitration shall be Nairobi. The Arbitration proceedings including hearings, document submissions and award shall be in English and all the Arbitrators shall be fluent in English language.”
16. In absence of an agreement as to how the Arbitrator would be appointed, the Applicant proposed the name of an Arbitrator. This did not elicit any response from the Respondent.
17. One of the underlying principles in Arbitration is party autonomy. Indeed Section 10 of the Arbitration Act limits the extent of the Courts intervention in matters Arbitration.
10. Extent of court intervention
Except as provided in this Act, no court shall intervene in matters governed by this Act
18. Looking at the application before the Court, a dispute has arisen. The Respondent has signalled that it too wishes to Counter-claim against the Applicant. The question that vexes the Court is whether it should assume the duty and responsibility of appointing the Arbitrator. Looking at the Arbitral clause, this power was not reserved for the Court. The parties assumed that once a dispute arose, they would proceed to Arbitration. They also assumed they would be able to agree on the appointment of that Arbitrator. Therefore, was no consensus on who the Arbitrator should be. There was no consensus on how the Arbitrator would be appointed if the parties could not agree on one. Certainly, they did not provide for what would happen if one party showed some disdain or ignored the arbitration route.
19. The Courts have dealt with similar applications. In Danki Ventures Limited v Sinopec International Petroleum Services Limited [2014] KEHC 8319 (KLR). Justice Fred Ochieng (as he then was) declined to allow a similar application stating as follows;
“If the parties wished to have that chairman as the person mandated to appoint the arbitrator, they could have said so expressly.
As the organization whose chairman could have appointed an arbitrator was not identified by the arbitrators, that renders the arbitral clause inoperative.
If the court wrote into the contract, so that it was the chairman of the Chartered Institute of Arbitrators who become mandated to appoint an arbitrator, then the court would have written into the arbitral clause a very substantive clause without knowing whether the parties would have wished to have that chairman or if the parties would have preferred the chairman of a totally different entity.
The court cannot impose on the parties either a particular arbitrator or a method for choosing the arbitrator.
In the event, as the arbitral clause is inoperative, I reject the defendant’s application to refer the case to arbitration.”
20. In Wanjala & 2 others v Registrar of Companies & 2 others; Okoa Finance Limited (Interested Party) [2022] KEHC 48 (KLR) Majanja J was of a similar view stating as follows;
“As I have stated, the Arbitration Act proceeds from the position that the arbitration process is consensual and court intervention is only necessary to assist the parties carry out their stated intention crystallized in the arbitration agreement. Hence section 12 of the Arbitration Act dealing with appointment of arbitrators, does not supplant the parties’ right to appoint or prescribe the mode of appointment of the arbitrator but only sets out a default procedure for the court to intervene should the either fail to comply with the contractual provisions for appointment of an arbitrator. The court can only intervene in matters appointment if the agreement provides for appointment and either party fails to comply with the agreement. In this case, the arbitration clause does not provide for appointment of an arbitrator or process for such appointment hence the court cannot re-write the parties’ agreement by taking upon itself to appoint an arbitrator.”
21. In Pitstop Technologies Limited v Dynamic Branding Ventures Limited [2020] KEHC 2768 (KLR) Majanja J reiterated the same position with clarity as follows;
"4. Section 12 of the Act recognises party autonomy by giving each party an opportunity to participate in the appointment of the arbitrator. This arbitration clause in the Agreement contemplates the appointment of a sole arbitrator hence under section 12(2) of the Act, the parties are required to agree on the arbitrator. Section 12(3) of the Act goes on to provide what happens when a party defaults or does not participate in the appointment. Section 12(4) then stipulates that once notice has been given to the other party, the party not in default may appoint the sole arbitrator and the arbitrator so appointed shall determine the matter and make a binding award.
5. At this stage, it is important to point out that the High Court is not involved in the process of appointment of an arbitrator where one party has defaulted. In line with the principle of party autonomy, the process remains in the parties’ hands. It is only after the party has made an appointment under section 12(4) of the Act, that the party in default is entitled to move the High Court to set aside that appointment. This section buttresses the fact that the party who is not in default is entitled to make an appointment. It is only after the High Court has dealt with the application to set aside the appointment and allowed the application, that it may, by consent of the parties or on the application of either party appoint a sole arbitrator.
6. The process as outlined in section 12 of the Act does not give the High Court original jurisdiction to appoint an arbitrator when the other party is in default. Further section 12(9) of the Act which the Applicant has been invoked does not apply to the circumstances of this case. The Summons is therefore premature as the process appointment is still in the applicant’s hands (see also Wachiuri Wahome t/a Adili Communications v Kenya Automotive Repairers Association ML HC No. 1057 of 2010 [2011] eKLR and Trustees, Tourism Promotion Services Staff Pension Scheme v Genafrica Asset Managers ML HC No. 161 of 2018 (OS) [2019] eKLR).”
22. This Court is not persuaded by the Applicant that it should interfere and direct on the appointment of an Arbitrator or direct the Chairperson of the Chartered Institute of Arbitrators Kenya Branch to appoint one. Borrowing from Section 12 of the Act and the decision of Majanja J . in Pitstop Technologies Limited v Dynamic Branding Ventures Limited [2020] KEHC 2768 (KLR) , the Applicant who is the party who is not in default should proceed to appoint an Arbitrator. If there is no objection to the appointment, the Arbitral proceedings should then commence. If there is an objection, the matter will find its way into our Courts for determination on an application for setting aside such an appointment. As matters now stand, the Application is premature.
23. The Application is declined. As to costs, there will be no orders as to costs as the application is unopposed.
24. The Originating Summons filed dated 23rd July, 2025 seeks the very same orders. Nothing will be gained by keeping it, as well as this file alive. It too suffers the same fate as the Motion.
Determination
25. The Application by way of a Notice of Motion dated 23rd July, 2025 is dismissed for lack of merits with no orders as to costs.
26. Equally the Originating Summons dated 23rd July is also dismissed with no orders as to costs.
27. It is so ordered.
28. The file is marked as closed.
DATED, SIGNED AND DELIVERED AT MILIMANI THIS 16TH DAY OF OCTOBER, 2025.
NJOROGE BENJAMIN K.
JUDGE
In the presence of;
Miss Kabura for Claimant/Applicant
N/A for the Respondent.
Mr. Peter Wabwire - Court Assistant.
'