RULING NO. 3
1. This Ruling is with respect to two applications. The first in time is HCCOMM Misc. App. No. E250 of 2021. For ease of reference and consistency, I will refer to the applicants in the said application and the respondents in HCCOMM Misc. App. No. E509 of 2022, as the applicants, although the latter application was filed by the respondents in HCCOMM Misc. App.No. E250 of 2021. The first application is the applicants’ Amended Amended Notice of Motion application dated 24th June 2022 filed in HCCOMM Misc. App. No. E250 of 2021, pursuant to the provisions of Sections 7, 14(3), 15 & 17(6) of the Arbitration Act and Rule 3 of the Arbitration Rules, 1997, seeking orders inter alia, that this Court sets aside the Ruling delivered by the 1st respondent on 8th June 2021, in which he held that he had the jurisdiction to act as Arbitrator and to determine both the merits of the claims by the 2nd to 9th respondents and the applicants’ counterclaims made under protest, Order No. 2 contained in Procedural Order for Directions No. 3 issued on 10th June 2021, through which the 1st respondent directed that issues of jurisdiction be determined together with the merits of the dispute and the Ruling and Orders made by the 1st respondent on 22nd June 2021, in which he dismissed the applicants’ challenge to his competence, independence and impartiality as Arbitrator. The applicants also seek an order that the Court declares null and void and/or sets aside the Award made by the sole Arbitrator Philip Aliker, dated 8th June 2022 and delivered on 21st June 2022.
2. The application is premised on the grounds on the face of the Motion, and it is supported by a supplementary affidavit sworn on 27th June 2022 by Mr. Evans Nyagah, the 1st applicant’s Principal Officer. Mr. Nyagah averred that the sole Arbitrator assumed jurisdiction on 8th June 2021, despite a pending challenge filed under Section 17(6) of the Arbitration Act, which upon filing, triggered an automatic stay under Section 17(8) of the said Act. He stated that the Arbitrator proceeded with hearings in January 2022, received submissions from the parties, and ultimately delivered an Award on 21st June 2022. Mr. Nyagah maintained that the Arbitrator lacked jurisdiction, as extensively argued in their submissions, including challenges to the validity of the arbitration clause, allegations of illegality and fraud in the claim, and reliance on established authority. He emphasized that proceedings must cease where jurisdiction is absent.
3. Mr. Nyagah deposed that despite these arguments, the Arbitrator ruled against the applicants and issued orders that allegedly transferred possession and management of the 1st applicant’s business to the respondents, in disregard of the statutory stay. He further stated that a request for stay of execution made to the Arbitrator on 23rd June 2022 was not granted. He contended that unless this Court intervenes, the applicants’ statutory rights under Sections 17(6)-(8) of the Arbitration Act, as well as their constitutional rights to access justice and a fair hearing will be rendered nugatory. He asserted that the Arbitrator’s actions offend the rule of law.
4. In opposition to the application herein, the 3rd respondent filed Grounds of Opposition dated 5th July 2022, raising the following issues –
1) The main dispute between parties is between Shareholders and is about the shareholding and management of the 1st applicant; thus the 1st applicant cannot be a participant in these proceedings;
2) The dispute between all parties had been referred to Arbitration by Court order issued in HCCC E. 278 of 2019 by virtue of Article 82 of the 1st applicant's Articles of Association;
3) The 1st to 5th applicants withdrew the said suit (above referred) and have since then filed several suits in various Courts seeking to stay the arbitration or remove the Arbitrator;
4) Since the filing of this suit and application, the Arbitration process has been finalized and an Award has been delivered thus the prayers in the Notice of Motion were overtaken by events;
5) Subsequently the applicants seek to further amend the Notice of Motion seeking to stay the implementation and execution of the Arbitral Award, and seeking orders declaring the Award as null and void;
6) The Amended Notice of Motion is misconceived for the following reasons:
i) Section 17(6) of the Arbitration Act 1995, does not apply as the Arbitration Act is clear that Section 17(6) of the Act only applies "where the arbitral tribunal rules as a preliminary question".
ii) Given the above there is no stay of the proceedings as per Section 17(8) of the Arbitration Act 1995.
iii) There is no application as envisaged by Section 17(6) of the Arbitration Act, 1995, which is pending before this Court or any other Court between parties in this matter.
iv) The Courts have determined this issue time and time again, where the issue of jurisdiction of an Arbitral Tribunal is determined together with the merits of the case, Section 17(6) does not apply. The 3rd respondent's list of authorities on this point shall be filed in due course.
7) The Amended application is therefore misconceived and an abuse of the Court process and the applicants do not have recourse under Section 17 of the Arbitration Act, as cited in the Amended Amended Notice of Motion;
8) The applicants have since the commencement of the Arbitration process attempted, without success, to derail the Arbitration process using various forum including the Amended application herein and a constitutional petition which was dismissed by this Court and they have even filed an application in the Criminal Courts; there has to be an end to litigation;
9) To date, the applicants have not met their share of costs in the Arbitration yet they are applying to this Court to stay the Award (even if under a misconception of the law);
10) The Court should not allow the applicants to further prosecute anything relating to the Arbitral Award given that the bigger part of the expenses was occasioned by the applicants, yet they have declined to meet their share of costs; and
11) For the above legal reasons the 3rd respondent opposes the Amended Amended Notice Motion.
5. The 5th respondent in opposition to the instant application, filed a Notice of Preliminary Objection dated 4th July 2022, raising the following grounds –
i) This Honourable Court lacks jurisdiction to hear and determine the Amended Amended Notice of Motion;
ii) The said Notice of Motion is bad in law in that it offends the provisions of the Arbitration Act No. 4 of 1995;
iii) The application is an abuse of due process of the Court and the same ought to be struck off;
iv) The applicants have come to a Court of equity with dirty hands hence they do not merit the grant of the orders sought;
v) The application is scandalous, vexatious and merely aimed at annoying the 5th respondent; and
vi) The 5th respondent prays that the application filed herein be struck off with costs.
6. The 5th respondent also filed a replying affidavit sworn on 5th June 2022 by Ms Lisa Anyango Amenya, the 5th respondent’s Director. Ms Amenya averred that Mr. Evans Nyagah is not the Principal Officer of the 1st applicant, as per the First Partial Award of 11th May 2022. She outlined that the applicants had previously instituted Miscellaneous Application No. 172 of 2021, seeking among other reliefs, to restrain arbitration proceedings, declarations on lack of jurisdiction, and orders regarding shareholding and company governance, but later withdrew the suit, leaving issues of costs pending. That subsequently, the applicants filed these proceedings along with multiple applications to amend their pleadings, which remain undetermined. She further averred that the applicants have filed several other suits in different Courts, including criminal, commercial, and constitutional matters, all allegedly aimed at obstructing the arbitral process, some of which have been withdrawn or dismissed for abuse of process. Ms Amenya contended that the impugned application offends the provisions of the Arbitration Act, rendering the Court to be without jurisdiction.
7. The 5th respondent thereafter filed a further affidavit sworn on 14th June 2023 by Ms Lisa Anyango Amenya, the 5th respondent’s Director. She deposed that the orders being sought herein are untenable in law since the arbitral proceedings had already been concluded with a Final Award issued, rendering prayers for stay being overtaken by events. She asserted that the issue of stay is res judicata, having been determined by a competent Court, and that parallel enforcement proceedings have already been instituted in High Court Commercial Miscellaneous Application No. E509 of 2022.
8. She further stated that this Court lacks jurisdiction to declare the Arbitral Award null and void and that it cannot review or vacate its earlier orders made on 12th April 2021. Ms Amenya averred that the instant application is intended to delay the resolution of the dispute between the parties herein, noting that the applicants actively participated in the arbitral proceedings and have also responded to enforcement proceedings. She asserted that the applicants have misapprehended the law, particularly in alleging that Section 17(8) of the Arbitration Act provides for an automatic stay.
9. In opposition to the instant application, the 2nd, 4th, 6th & 9th respondents filed Grounds of Opposition dated 22nd July 2022, raising the following issues –
i) The application is an abuse of Court process for the following reasons:
a) The applicants have consistently sought to stall or stop the arbitral proceedings through this action and other cases.
b) The test for challenging Arbitral Award set out in Section 35 of the Arbitration Act has not been met.
c) There is an application to strike out the entire action pending, and the proposed amendments would not cure the defects in the suit.
d) The 1st applicant has launched a collateral attack on the attack on the First Partial Award published on 11th May 2022 in E247/2022.
e) The application is an afterthought, the applicants having sought to set aside the Arbitral Award by filing High Court (Commercial and Tax Division) Miscellaneous E469 which they withdrew on 28th June 2022.
f) The application is intended to vex the respondents and this Court in view of the reckless and unfortunate statements made in the applicants’ Advocate’s email of 9th June 2021 produced at pages 762 to 764 of the exhibit annexed to the application.
ii) There is no jurisdiction to intervene in the Arbitral proceedings in the circumstances having regard to Section 10 of the Arbitration Act.
iii) Section 17(8) is not applicable as the question of jurisdiction was not determined as a preliminary question in the arbitration. It was determined together with the merits of the claim and the counterclaim.
iv) Other grounds set out in the affidavit of Kevin McCourt sworn herein.
10. The 2nd, 4th, 6th, & 9th respondents also filed a replying affidavit sworn on 18th July 2023 by Mr. Kevin McCourt, the 6th respondent herein. Mr. McCourt averred that the applicants initially sought to terminate the Arbitral proceedings through an Originating Notice of Motion dated 9th April 2021, but that application has since been overtaken by events following the publication of both a Partial Arbitral Award on 11th May 2022 and a Final Award on 27th September 2022. He outlined the multiple applications filed by the applicants seeking to challenge the Arbitrator’s jurisdiction, review Court orders, and stay arbitral proceedings, many of which have similarly been overtaken by events or determined by the Court. He stated that the instant application seeks to nullify and stay implementation of the Arbitral Award on grounds that the Arbitrator lacked jurisdiction, but contended that this position is legally flawed.
11. Mr. McCourt asserted that Section 17(8) of the Arbitration Act does not bar an Arbitrator from continuing proceedings or issuing an Award where a jurisdictional challenge has been filed. He averred that the applicants misconceived the process, as the Arbitrator directed that jurisdiction would be determined together with the merits, which was ultimately done in the Award. He contended that any challenge ought to have been brought under Section 35 of the Arbitration Act to set aside the Award, rendering reliance on Section 17(6)-(8) inapplicable. He referred to prior Court decisions, including Rulings in High Court Commercial Suit No. E247 of 2022, where the applicants’ actions were deemed as a collateral attack on the Arbitral Award, and Constitutional Petition No. E003 of 2022, which was dismissed for abuse of process.
12. In a rejoinder, the applicants filed a further affidavit sworn on 30th August 2023 by Mr. Julius Orenge, a member of the 1st applicant’s Board of Directors. Mr. Orenge contended that the respondents’ claim of majority shareholding is founded on an illegality arising from contravention of Section 23(4) of the Insurance Act, and that the arbitral process itself is tainted by lack of a valid Arbitration Agreement and procedural irregularities. He stated that the applicants’ various applications challenging the Arbitrator’s jurisdiction and seeking to stay or terminate the Arbitral proceedings were properly filed and remain pending, having not been heard prior to the issuance of the Arbitral Award. He asserted that under the proper interpretation of the Arbitration Act, the Court retains jurisdiction to determine all challenges to jurisdiction, the validity of the Arbitration Agreement, and the propriety of the Arbitral Award.
13. He deposed that the Arbitrator lacked jurisdiction ab initio, due to an invalid arbitration clause allegedly introduced unlawfully and involving parties who are not legitimate Shareholders, and also raises concerns about the Arbitrator’s competence and impartiality. Mr. Orenge denied multiple averments made by the 6th respondent, including claims that the applicants failed to challenge the Arbitrator appropriately or that prior proceedings conclusively determined the issues in dispute. He asserted that certain Rulings relied upon by the respondents are under appeal and that material facts regarding such appeals have been deliberately withheld from the Court.
14. The second application was filed in HCCOMM Misc. App. No. 509 of 2022 vide a Chamber Summons dated 6th July 2022 pursuant to the provisions of Section 36 of the Arbitration Act and Rule 9 of the Arbitration Rules, 1997. The 2nd, 3rd, 4th, 5th & 7th respondents seek orders for this Court to recognize and enforce the First Partial Award dated 11th May 2022 as a decree of the Court, and to grant leave for its enforcement, for the Court to direct the Officer Commanding Station, Central Police Station, or any other competent authority, to place and maintain the 2nd, 3rd, 4th, 5th & 7th respondents in possession of all offices, branches, and properties of Directline Assurance Company Limited, including the removal of any applicants, their agents, or servants who may resist vacating. The 2nd, 3rd, 4th, 5th & 7th respondents also seek orders directing relevant Police authorities across various jurisdictions in Kenya to assist in the retrieval and retention of the company’s assets, including servers, computers, and books of account, wherever they may be located.
15. The 2nd application is premised on the grounds on the face of the Summons, and it is supported by an affidavit sworn on the same day by Ms Janice Theresa Wanjiku Kiarie, a Director of the 7th respondent company. Ms Kiarie averred that a dispute arose between the parties herein concerning the shareholding of Directline Assurance Company Limited, during which the applicants unlawfully took control of the company while the matter was still pending. She averred that the said action prompted the 2nd, 3rd, 4th, 5th & 7th respondents to file High Court Civil Case No. E277 of 2019, seeking interim protective measures pending Arbitration, while parallel proceedings were initiated in HCCC No. E278 of 2019. She contended that the latter suit was stayed by the High Court, and referred to Arbitration in accordance with Article 82 of the Company’s Articles of Association.
16. Ms Kiarie deposed that following correspondence with the Chartered Institute of Arbitrators, Mr. Philip Bliss Aliker was appointed as Arbitrator in February 2021, and the matter proceeded to a full hearing in January 2022. That subsequently, on 22nd June 2022, the Arbitrator published a First Partial Award dated 11th May 2022, declaring that the 2nd, 3rd, 4th, 5th & 7th respondents held 90.336% of the company’s shares while the applicants held 9.66% of the shares in the company. She averred that the Arbitrator further found that the applicants had unlawfully taken possession of the company’s premises at Hazina Towers and excluded the 2nd, 3rd, 4th, 5th & 7th respondents. Ms Kiarie asserted that the Award ordered the applicants to vacate the premises, return all company property and records, disclose financial dealings, and restrained them from interfering with the company’s management, and that the Arbitrator dismissed the applicants’ counterclaim.
17. Ms Kiarie stated that the delay in releasing the Award was occasioned by conservatory orders issued in a Constitutional Petition, which were later set aside. She claimed that despite the issuance of the Award and subsequent procedural directions, the applicants have failed to comply and have instead initiated multiple legal proceedings across various Courts, which according to the 2nd, 3rd, 4th, 5th & 7th respondents’ Counsel, do not impede enforcement of the Arbitral Award. Ms Kiarie asserted that their attempts to effect a handover of the company’s premises were met with resistance, threats, and obstruction, including attempts at physical intimidation. She contended that the applicants are mismanaging the company by removing records, failing to settle claims, exposing the company to execution proceedings amounting to approximately Kshs. 1 Billion, and making substantial payments to Advocates from company funds. She emphasized that unless the Award is enforced, the applicants will continue to run the company down.
18. In opposition to the 2nd, 3rd, 4th, 5th & 7th respondents’ application, the applicants filed a replying affidavit sworn on 12th September 2022 by Mr. Evans Nyagah, the Principal Officer/Chief Executive Officer of Directline Assurance Company Ltd. He deposed that the applicants and respondents are Shareholders in the company, with the 1st to 3rd applicants holding shares in trust for the 4th applicant. He averred that the application herein seeks to enforce a purported Arbitral Award issued while there were pending proceedings challenging the Arbitrator’s removal on grounds of bias and lack of integrity. Mr. Nyagah contended that any decision made by a biased Arbitrator is null and void.
19. He stated that under the Arbitration Act, enforcement of an Arbitral Award can only proceed after the Court has determined all pending applications, including those relating to jurisdiction and the Arbitrator’s conduct, and as such, the instant application is premature and an abuse of the Court process. He expressed the view that the Court is functus officio regarding interim reliefs already declined and lacks jurisdiction to entertain the application herein, especially in light of the provisions of Section 17(6) & (8) of the Arbitration Act. Mr. Nyagah also claimed that the Arbitral Award is illegal for contravening the provisions of Section 23 of the Insurance Act by allocating shareholding beyond statutory limits. He asserted that the 2nd, 3rd, 4th, 5th & 7th respondents’ affidavit contains disputed matters that are already subject to pending proceedings.
20. The applicants also filed a Notice of Preliminary Objection dated 10th July 2022 raising the following grounds –
i) The 2nd, 3rd, 4th, 5th & 7th respondents are barred by Section 17(8) of the Arbitration Act in view of the fact that there are in High Court Misc. civil Application No. E250 of 2021 Royal Media Services Ltd & others Vs Philip Aliker & others, applications dated 11th June 2021, 9th July 2021 and 27th June 2022 challenging the competence of the Arbitrator Mr. Philip Aliker and the jurisdiction to entertain the dispute between the applicants and the respondents in the said High Court Misc. Civil Application No. E250 of 2021 Royal Media Services Ltd & others Vs Philip Aliker & others.
21. The applicants thereafter filed a further affidavit sworn on 4th September 2023 by Mr. Julius Orenge, a member of the Board of Directors of Directline Assurance Company Limited. He asserted that the 1st to 3rd applicants (respondents) hold shares as nominees of the 4th applicant (4th respondent) in contravention of pre-emption rights and in a scheme intended to bypass statutory shareholding limits under the Insurance Act. He contended that the 2nd, 3rd, 4th, 5th & 7th respondents’ supporting affidavit is part of a long-standing fraudulent scheme dating back to 2007, orchestrated to secure majority control of the company through nominee shareholding arrangements and misrepresentations regarding beneficial ownership. He stated that the applicants were excluded from company affairs based on false claims that their shares were held in trust, and that after statutory amendments capped shareholding in insurance companies, the 2nd, 3rd, 4th, 5th & 7th respondents recruited nominee shareholders to circumvent these limits.
22. He claimed that when the applicants challenged this arrangement, the 2nd, 3rd, 4th, 5th & 7th respondents manipulated the company’s Articles of Association in 2017 to introduce an arbitration clause without proper notice or participation of all Shareholders, rendering the clause invalid. He asserted that the subsequent arbitration proceedings and resulting Award were therefore founded on an illegitimate and fraudulently introduced clause, and were conducted irregularly, including being initiated without proper invocation of the agreed procedure. He maintained that the Arbitral Award sought to be enforced is invalid as it arises from a flawed and biased process. He contended that the Arbitrator acted with partiality and in disregard of procedural fairness, including proceeding despite pending Court challenges and allegedly inviting claims improperly. Mr. Orenge asserted that the 2nd, 3rd, 4th, 5th & 7th respondents’ actions are aimed at enforcing an Award that is under challenge and lacks legal force under the Arbitration Act.
23. In a rejoinder, the 5th respondent filed a supplementary affidavit sworn on 8th December 2023 by Ms Lisa Anyango Amenya, one of the Directors of the 5th respondent company. She confirmed that the 2nd, 3rd, 4th, 5th & 7th respondents have a pending application before the Court seeking enforcement of the First Partial Arbitral Award issued on 22nd June 2022. She averred that subsequent to that application, the Arbitrator delivered a Final Award on 27th September 2022, followed by a Correcting Memorandum on 27th October 2022. She emphasized the necessity of placing the Final Award before the Court, noting that it had not been issued at the time the enforcement application was filed. She asserted that the inclusion of the Final Award issued on 27th September 2022 and the Correcting Memorandum issued on 27th October 2022, it is essential for the Court to effectively and conclusively determine the real issues in dispute between the parties herein.
24. The two applications were canvassed by way of written submissions which were highlighted on 3rd & 4th December 2025.
HCCOMM Misc. App. No. E250 of 2021
25. The applicants’ submissions were filed on 29th October 2023 by the law firm of Kamau Kuria & Company Advocates. The 2nd, 4th, 6th & 9th respondents’ submissions were filed by the law firm of Hamilton, Harrison & Mathews on 28th November 2023 and the 3rd, 5th & 7th respondents’ submissions were filed on 11th December 2023 by the law firm of Kairu & McCourt Advocates.
26. Dr. Kamau Kuria (SC), learned Counsel for the applicants submitted that following the invitation of 23rd February 2021, the 2nd respondent, represented by the law firm of Kairu & McCourt Advocates, confirmed the existence of a dispute to be adjudicated upon, prompting the 1st respondent, who had not been validly appointed under Article 82 of the Memorandum and Articles of Association of the 1st applicant or under Section 16 of the Arbitration Act, to convene a preliminary arbitral meeting and invite parties to propose dates. He contended that this unilateral action contravened the provisions of Section 19 of the Arbitration Act, which mandates equal treatment of parties and a fair opportunity to present one’s case, as the applicants had previously raised concerns about bias in letters dated 12th & 18th March 2021.
27. Dr. Kamau Kuria (SC), argued that despite the applicants’ objections, the 1st respondent proceeded with the meeting on 16th March 2021 and issued Procedural Order No. 1, effectively reconstituting the parties by converting certain respondents into claimants and former claimants into respondents, and directing service of statements of claim without addressing whether the arbitration had been lawfully terminated by the Applicants’ withdrawal on 17th February 2021. Senior Counsel submitted that the applicants immediately protested through letters and filed a Challenge to the Competence of Arbitration and the Arbitrator under Sections 13, 14 and 15 of the Arbitration Act on 22nd March 2021, asserting that the 1st respondent’s impartiality and independence were compromised, and that the arbitration conducted was unlawful.
28. He contended that the 1st respondent disregarded the doctrine of functus officio, as enunciated by the Supreme Court in Odinga v Independent Electoral & Boundaries Commission [2013] KESC 8 (KLR), by reviewing and overturning his own prior decision of 16th March 2021 to determine jurisdiction separately from the merits, by issuing Procedural Order No. 3 on 10th June 2021 to consolidate jurisdiction and merits’ issues, and dismissing the applicants’ challenge to his competence. Counsel asserted that the 1st respondent’s conduct demonstrates bias, dishonesty, and professional incompetence, evidenced by his failure to recognize that the Arbitration was terminated by operation of law, disregard for Sections 15 & 16 of the Arbitration Act regarding termination and appointment of Arbitrators, and improper engagement in formulating disputes and defining parties, contrary to the principle established by the Court of Appeal in Independent Electoral and Boundaries Commission v Mule & 3 others [2014] KECA 890 (KLR).
29. Dr. Kamau Kuria (SC) stated that by proceeding without hearing submissions on the legality of his appointment, the termination of arbitration, or the existence of a valid Arbitration Agreement, the 1st respondent violated the provisions of Section 19 of the Arbitration Act, embodying natural justice, and rendered his decisions null and void, as supported by the finding in R v Lambert [1957] EA 575 and DLG v Laing Investments (Bracknell) Ltd 60 BLR 112. Senior Counsel further stated that on 22nd June 2021, the 1st respondent issued a Ruling asserting impartiality and competence despite overwhelming evidence of bias and prior judicial findings of incompetence, disregarding provisions in the Memorandum and Articles of association and statutory law under the Insurance Act governing valid Shareholder status and Arbitration procedures. He contended that the Arbitration proceedings initiated without lawful authority violated the provisions of Article 82 of the Memorandum and Articles of association of the 1st applicant, Sections 15, 16 & 19 of the Arbitration Act, and fundamental principles of natural justice, thus the resulting Award is unenforceable and contrary to public policy.
30. Senior Counsel submitted that the 1st respondent disregarded their objection to the holding of Arbitral proceedings, as reflected in the supplementary affidavit of Mr. Evans Nyagah. Senior Counsel claimed that the meeting of 16th March 2021 resulted in Procedural Order No. 1, which dictated the sequence and timing of submissions while redefining parties’ roles and failed to address whether the Arbitration had been terminated by withdrawal. Further, that the applicants’ letters of 18th March 2021 highlighted the 1st respondent’s partisanship, noting that he acted as an Advocate for the respondents, rather than as an impartial umpire, while the respondents’ representatives focused solely on Shareholding disputes rather than proper procedure under Article 82 of the Memorandum and Articles of association of the 1st applicant.
31. It was submitted by Senior Counsel that following the rejection of a stay of proceedings on 12th April 2021, the applicants filed under protest, replies to the respondents’ statements of claim, asserting that Article 82 of the Memorandum and Articles of association of the 1st applicant did not constitute a valid Arbitration Agreement and that certain entities were not valid Shareholders under the said Memorandum and the Insurance Act. He explained that the trial before the Arbitrator between 10th & 14th January 2022 involved evidence in support of the applicants’ defence, while an Amended Challenge to the competence of Arbitration and Arbitrator was filed on 15th May 2021. He stated that the applicants further challenged Procedural Direction No. 3 and the Ruling of 8th June 2021, asserting that the 1st respondent had predetermined the outcome of jurisdictional and merit issues, thereby violating the rules of natural justice, the functus officio doctrine, and the Arbitral framework established in the Memorandum and Articles of association of the 1st applicant.
32.
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1. This Ruling is with respect to two applications. The first in time is HCCOMM Misc. App. No. E250 of 2021. For ease of reference and consistency, I will refer to the applicants in the said application and the respondents in HCCOMM Misc. App. No. E509 of 2022, as the applicants, although the latter application was filed by the respondents in HCCOMM Misc. App.No. E250 of 2021. The first application is the applicants’ Amended Amended Notice of Motion application dated 24th June 2022 filed in HCCOMM Misc. App. No. E250 of 2021, pursuant to the provisions of Sections 7, 14(3), 15 & 17(6) of the Arbitration Act and Rule 3 of the Arbitration Rules, 1997, seeking orders inter alia, that this Court sets aside the Ruling delivered by the 1st respondent on 8th June 2021, in which he held that he had the jurisdiction to act as Arbitrator and to determine both the merits of the claims by the 2nd to 9th respondents and the applicants’ counterclaims made under protest, Order No. 2 contained in Procedural Order for Directions No. 3 issued on 10th June 2021, through which the 1st respondent directed that issues of jurisdiction be determined together with the merits of the dispute and the Ruling and Orders made by the 1st respondent on 22nd June 2021, in which he dismissed the applicants’ challenge to his competence, independence and impartiality as Arbitrator. The applicants also seek an order that the Court declares null and void and/or sets aside the Award made by the sole Arbitrator Philip Aliker, dated 8th June 2022 and delivered on 21st June 2022.
2. The application is premised on the grounds on the face of the Motion, and it is supported by a supplementary affidavit sworn on 27th June 2022 by Mr. Evans Nyagah, the 1st applicant’s Principal Officer. Mr. Nyagah averred that the sole Arbitrator assumed jurisdiction on 8th June 2021, despite a pending challenge filed under Section 17(6) of the Arbitration Act, which upon filing, triggered an automatic stay under Section 17(8) of the said Act. He stated that the Arbitrator proceeded with hearings in January 2022, received submissions from the parties, and ultimately delivered an Award on 21st June 2022. Mr. Nyagah maintained that the Arbitrator lacked jurisdiction, as extensively argued in their submissions, including challenges to the validity of the arbitration clause, allegations of illegality and fraud in the claim, and reliance on established authority. He emphasized that proceedings must cease where jurisdiction is absent.
3. Mr. Nyagah deposed that despite these arguments, the Arbitrator ruled against the applicants and issued orders that allegedly transferred possession and management of the 1st applicant’s business to the respondents, in disregard of the statutory stay. He further stated that a request for stay of execution made to the Arbitrator on 23rd June 2022 was not granted. He contended that unless this Court intervenes, the applicants’ statutory rights under Sections 17(6)-(8) of the Arbitration Act, as well as their constitutional rights to access justice and a fair hearing will be rendered nugatory. He asserted that the Arbitrator’s actions offend the rule of law.
4. In opposition to the application herein, the 3rd respondent filed Grounds of Opposition dated 5th July 2022, raising the following issues –
1) The main dispute between parties is between Shareholders and is about the shareholding and management of the 1st applicant; thus the 1st applicant cannot be a participant in these proceedings;
2) The dispute between all parties had been referred to Arbitration by Court order issued in HCCC E. 278 of 2019 by virtue of Article 82 of the 1st applicant's Articles of Association;
3) The 1st to 5th applicants withdrew the said suit (above referred) and have since then filed several suits in various Courts seeking to stay the arbitration or remove the Arbitrator;
4) Since the filing of this suit and application, the Arbitration process has been finalized and an Award has been delivered thus the prayers in the Notice of Motion were overtaken by events;
5) Subsequently the applicants seek to further amend the Notice of Motion seeking to stay the implementation and execution of the Arbitral Award, and seeking orders declaring the Award as null and void;
6) The Amended Notice of Motion is misconceived for the following reasons:
i) Section 17(6) of the Arbitration Act 1995, does not apply as the Arbitration Act is clear that Section 17(6) of the Act only applies "where the arbitral tribunal rules as a preliminary question".
ii) Given the above there is no stay of the proceedings as per Section 17(8) of the Arbitration Act 1995.
iii) There is no application as envisaged by Section 17(6) of the Arbitration Act, 1995, which is pending before this Court or any other Court between parties in this matter.
iv) The Courts have determined this issue time and time again, where the issue of jurisdiction of an Arbitral Tribunal is determined together with the merits of the case, Section 17(6) does not apply. The 3rd respondent's list of authorities on this point shall be filed in due course.
7) The Amended application is therefore misconceived and an abuse of the Court process and the applicants do not have recourse under Section 17 of the Arbitration Act, as cited in the Amended Amended Notice of Motion;
8) The applicants have since the commencement of the Arbitration process attempted, without success, to derail the Arbitration process using various forum including the Amended application herein and a constitutional petition which was dismissed by this Court and they have even filed an application in the Criminal Courts; there has to be an end to litigation;
9) To date, the applicants have not met their share of costs in the Arbitration yet they are applying to this Court to stay the Award (even if under a misconception of the law);
10) The Court should not allow the applicants to further prosecute anything relating to the Arbitral Award given that the bigger part of the expenses was occasioned by the applicants, yet they have declined to meet their share of costs; and
11) For the above legal reasons the 3rd respondent opposes the Amended Amended Notice Motion.
5. The 5th respondent in opposition to the instant application, filed a Notice of Preliminary Objection dated 4th July 2022, raising the following grounds –
i) This Honourable Court lacks jurisdiction to hear and determine the Amended Amended Notice of Motion;
ii) The said Notice of Motion is bad in law in that it offends the provisions of the Arbitration Act No. 4 of 1995;
iii) The application is an abuse of due process of the Court and the same ought to be struck off;
iv) The applicants have come to a Court of equity with dirty hands hence they do not merit the grant of the orders sought;
v) The application is scandalous, vexatious and merely aimed at annoying the 5th respondent; and
vi) The 5th respondent prays that the application filed herein be struck off with costs.
6. The 5th respondent also filed a replying affidavit sworn on 5th June 2022 by Ms Lisa Anyango Amenya, the 5th respondent’s Director. Ms Amenya averred that Mr. Evans Nyagah is not the Principal Officer of the 1st applicant, as per the First Partial Award of 11th May 2022. She outlined that the applicants had previously instituted Miscellaneous Application No. 172 of 2021, seeking among other reliefs, to restrain arbitration proceedings, declarations on lack of jurisdiction, and orders regarding shareholding and company governance, but later withdrew the suit, leaving issues of costs pending. That subsequently, the applicants filed these proceedings along with multiple applications to amend their pleadings, which remain undetermined. She further averred that the applicants have filed several other suits in different Courts, including criminal, commercial, and constitutional matters, all allegedly aimed at obstructing the arbitral process, some of which have been withdrawn or dismissed for abuse of process. Ms Amenya contended that the impugned application offends the provisions of the Arbitration Act, rendering the Court to be without jurisdiction.
7. The 5th respondent thereafter filed a further affidavit sworn on 14th June 2023 by Ms Lisa Anyango Amenya, the 5th respondent’s Director. She deposed that the orders being sought herein are untenable in law since the arbitral proceedings had already been concluded with a Final Award issued, rendering prayers for stay being overtaken by events. She asserted that the issue of stay is res judicata, having been determined by a competent Court, and that parallel enforcement proceedings have already been instituted in High Court Commercial Miscellaneous Application No. E509 of 2022.
8. She further stated that this Court lacks jurisdiction to declare the Arbitral Award null and void and that it cannot review or vacate its earlier orders made on 12th April 2021. Ms Amenya averred that the instant application is intended to delay the resolution of the dispute between the parties herein, noting that the applicants actively participated in the arbitral proceedings and have also responded to enforcement proceedings. She asserted that the applicants have misapprehended the law, particularly in alleging that Section 17(8) of the Arbitration Act provides for an automatic stay.
9. In opposition to the instant application, the 2nd, 4th, 6th & 9th respondents filed Grounds of Opposition dated 22nd July 2022, raising the following issues –
i) The application is an abuse of Court process for the following reasons:
a) The applicants have consistently sought to stall or stop the arbitral proceedings through this action and other cases.
b) The test for challenging Arbitral Award set out in Section 35 of the Arbitration Act has not been met.
c) There is an application to strike out the entire action pending, and the proposed amendments would not cure the defects in the suit.
d) The 1st applicant has launched a collateral attack on the attack on the First Partial Award published on 11th May 2022 in E247/2022.
e) The application is an afterthought, the applicants having sought to set aside the Arbitral Award by filing High Court (Commercial and Tax Division) Miscellaneous E469 which they withdrew on 28th June 2022.
f) The application is intended to vex the respondents and this Court in view of the reckless and unfortunate statements made in the applicants’ Advocate’s email of 9th June 2021 produced at pages 762 to 764 of the exhibit annexed to the application.
ii) There is no jurisdiction to intervene in the Arbitral proceedings in the circumstances having regard to Section 10 of the Arbitration Act.
iii) Section 17(8) is not applicable as the question of jurisdiction was not determined as a preliminary question in the arbitration. It was determined together with the merits of the claim and the counterclaim.
iv) Other grounds set out in the affidavit of Kevin McCourt sworn herein.
10. The 2nd, 4th, 6th, & 9th respondents also filed a replying affidavit sworn on 18th July 2023 by Mr. Kevin McCourt, the 6th respondent herein. Mr. McCourt averred that the applicants initially sought to terminate the Arbitral proceedings through an Originating Notice of Motion dated 9th April 2021, but that application has since been overtaken by events following the publication of both a Partial Arbitral Award on 11th May 2022 and a Final Award on 27th September 2022. He outlined the multiple applications filed by the applicants seeking to challenge the Arbitrator’s jurisdiction, review Court orders, and stay arbitral proceedings, many of which have similarly been overtaken by events or determined by the Court. He stated that the instant application seeks to nullify and stay implementation of the Arbitral Award on grounds that the Arbitrator lacked jurisdiction, but contended that this position is legally flawed.
11. Mr. McCourt asserted that Section 17(8) of the Arbitration Act does not bar an Arbitrator from continuing proceedings or issuing an Award where a jurisdictional challenge has been filed. He averred that the applicants misconceived the process, as the Arbitrator directed that jurisdiction would be determined together with the merits, which was ultimately done in the Award. He contended that any challenge ought to have been brought under Section 35 of the Arbitration Act to set aside the Award, rendering reliance on Section 17(6)-(8) inapplicable. He referred to prior Court decisions, including Rulings in High Court Commercial Suit No. E247 of 2022, where the applicants’ actions were deemed as a collateral attack on the Arbitral Award, and Constitutional Petition No. E003 of 2022, which was dismissed for abuse of process.
12. In a rejoinder, the applicants filed a further affidavit sworn on 30th August 2023 by Mr. Julius Orenge, a member of the 1st applicant’s Board of Directors. Mr. Orenge contended that the respondents’ claim of majority shareholding is founded on an illegality arising from contravention of Section 23(4) of the Insurance Act, and that the arbitral process itself is tainted by lack of a valid Arbitration Agreement and procedural irregularities. He stated that the applicants’ various applications challenging the Arbitrator’s jurisdiction and seeking to stay or terminate the Arbitral proceedings were properly filed and remain pending, having not been heard prior to the issuance of the Arbitral Award. He asserted that under the proper interpretation of the Arbitration Act, the Court retains jurisdiction to determine all challenges to jurisdiction, the validity of the Arbitration Agreement, and the propriety of the Arbitral Award.
13. He deposed that the Arbitrator lacked jurisdiction ab initio, due to an invalid arbitration clause allegedly introduced unlawfully and involving parties who are not legitimate Shareholders, and also raises concerns about the Arbitrator’s competence and impartiality. Mr. Orenge denied multiple averments made by the 6th respondent, including claims that the applicants failed to challenge the Arbitrator appropriately or that prior proceedings conclusively determined the issues in dispute. He asserted that certain Rulings relied upon by the respondents are under appeal and that material facts regarding such appeals have been deliberately withheld from the Court.
14. The second application was filed in HCCOMM Misc. App. No. 509 of 2022 vide a Chamber Summons dated 6th July 2022 pursuant to the provisions of Section 36 of the Arbitration Act and Rule 9 of the Arbitration Rules, 1997. The 2nd, 3rd, 4th, 5th & 7th respondents seek orders for this Court to recognize and enforce the First Partial Award dated 11th May 2022 as a decree of the Court, and to grant leave for its enforcement, for the Court to direct the Officer Commanding Station, Central Police Station, or any other competent authority, to place and maintain the 2nd, 3rd, 4th, 5th & 7th respondents in possession of all offices, branches, and properties of Directline Assurance Company Limited, including the removal of any applicants, their agents, or servants who may resist vacating. The 2nd, 3rd, 4th, 5th & 7th respondents also seek orders directing relevant Police authorities across various jurisdictions in Kenya to assist in the retrieval and retention of the company’s assets, including servers, computers, and books of account, wherever they may be located.
15. The 2nd application is premised on the grounds on the face of the Summons, and it is supported by an affidavit sworn on the same day by Ms Janice Theresa Wanjiku Kiarie, a Director of the 7th respondent company. Ms Kiarie averred that a dispute arose between the parties herein concerning the shareholding of Directline Assurance Company Limited, during which the applicants unlawfully took control of the company while the matter was still pending. She averred that the said action prompted the 2nd, 3rd, 4th, 5th & 7th respondents to file High Court Civil Case No. E277 of 2019, seeking interim protective measures pending Arbitration, while parallel proceedings were initiated in HCCC No. E278 of 2019. She contended that the latter suit was stayed by the High Court, and referred to Arbitration in accordance with Article 82 of the Company’s Articles of Association.
16. Ms Kiarie deposed that following correspondence with the Chartered Institute of Arbitrators, Mr. Philip Bliss Aliker was appointed as Arbitrator in February 2021, and the matter proceeded to a full hearing in January 2022. That subsequently, on 22nd June 2022, the Arbitrator published a First Partial Award dated 11th May 2022, declaring that the 2nd, 3rd, 4th, 5th & 7th respondents held 90.336% of the company’s shares while the applicants held 9.66% of the shares in the company. She averred that the Arbitrator further found that the applicants had unlawfully taken possession of the company’s premises at Hazina Towers and excluded the 2nd, 3rd, 4th, 5th & 7th respondents. Ms Kiarie asserted that the Award ordered the applicants to vacate the premises, return all company property and records, disclose financial dealings, and restrained them from interfering with the company’s management, and that the Arbitrator dismissed the applicants’ counterclaim.
17. Ms Kiarie stated that the delay in releasing the Award was occasioned by conservatory orders issued in a Constitutional Petition, which were later set aside. She claimed that despite the issuance of the Award and subsequent procedural directions, the applicants have failed to comply and have instead initiated multiple legal proceedings across various Courts, which according to the 2nd, 3rd, 4th, 5th & 7th respondents’ Counsel, do not impede enforcement of the Arbitral Award. Ms Kiarie asserted that their attempts to effect a handover of the company’s premises were met with resistance, threats, and obstruction, including attempts at physical intimidation. She contended that the applicants are mismanaging the company by removing records, failing to settle claims, exposing the company to execution proceedings amounting to approximately Kshs. 1 Billion, and making substantial payments to Advocates from company funds. She emphasized that unless the Award is enforced, the applicants will continue to run the company down.
18. In opposition to the 2nd, 3rd, 4th, 5th & 7th respondents’ application, the applicants filed a replying affidavit sworn on 12th September 2022 by Mr. Evans Nyagah, the Principal Officer/Chief Executive Officer of Directline Assurance Company Ltd. He deposed that the applicants and respondents are Shareholders in the company, with the 1st to 3rd applicants holding shares in trust for the 4th applicant. He averred that the application herein seeks to enforce a purported Arbitral Award issued while there were pending proceedings challenging the Arbitrator’s removal on grounds of bias and lack of integrity. Mr. Nyagah contended that any decision made by a biased Arbitrator is null and void.
19. He stated that under the Arbitration Act, enforcement of an Arbitral Award can only proceed after the Court has determined all pending applications, including those relating to jurisdiction and the Arbitrator’s conduct, and as such, the instant application is premature and an abuse of the Court process. He expressed the view that the Court is functus officio regarding interim reliefs already declined and lacks jurisdiction to entertain the application herein, especially in light of the provisions of Section 17(6) & (8) of the Arbitration Act. Mr. Nyagah also claimed that the Arbitral Award is illegal for contravening the provisions of Section 23 of the Insurance Act by allocating shareholding beyond statutory limits. He asserted that the 2nd, 3rd, 4th, 5th & 7th respondents’ affidavit contains disputed matters that are already subject to pending proceedings.
20. The applicants also filed a Notice of Preliminary Objection dated 10th July 2022 raising the following grounds –
i) The 2nd, 3rd, 4th, 5th & 7th respondents are barred by Section 17(8) of the Arbitration Act in view of the fact that there are in High Court Misc. civil Application No. E250 of 2021 Royal Media Services Ltd & others Vs Philip Aliker & others, applications dated 11th June 2021, 9th July 2021 and 27th June 2022 challenging the competence of the Arbitrator Mr. Philip Aliker and the jurisdiction to entertain the dispute between the applicants and the respondents in the said High Court Misc. Civil Application No. E250 of 2021 Royal Media Services Ltd & others Vs Philip Aliker & others.
21. The applicants thereafter filed a further affidavit sworn on 4th September 2023 by Mr. Julius Orenge, a member of the Board of Directors of Directline Assurance Company Limited. He asserted that the 1st to 3rd applicants (respondents) hold shares as nominees of the 4th applicant (4th respondent) in contravention of pre-emption rights and in a scheme intended to bypass statutory shareholding limits under the Insurance Act. He contended that the 2nd, 3rd, 4th, 5th & 7th respondents’ supporting affidavit is part of a long-standing fraudulent scheme dating back to 2007, orchestrated to secure majority control of the company through nominee shareholding arrangements and misrepresentations regarding beneficial ownership. He stated that the applicants were excluded from company affairs based on false claims that their shares were held in trust, and that after statutory amendments capped shareholding in insurance companies, the 2nd, 3rd, 4th, 5th & 7th respondents recruited nominee shareholders to circumvent these limits.
22. He claimed that when the applicants challenged this arrangement, the 2nd, 3rd, 4th, 5th & 7th respondents manipulated the company’s Articles of Association in 2017 to introduce an arbitration clause without proper notice or participation of all Shareholders, rendering the clause invalid. He asserted that the subsequent arbitration proceedings and resulting Award were therefore founded on an illegitimate and fraudulently introduced clause, and were conducted irregularly, including being initiated without proper invocation of the agreed procedure. He maintained that the Arbitral Award sought to be enforced is invalid as it arises from a flawed and biased process. He contended that the Arbitrator acted with partiality and in disregard of procedural fairness, including proceeding despite pending Court challenges and allegedly inviting claims improperly. Mr. Orenge asserted that the 2nd, 3rd, 4th, 5th & 7th respondents’ actions are aimed at enforcing an Award that is under challenge and lacks legal force under the Arbitration Act.
23. In a rejoinder, the 5th respondent filed a supplementary affidavit sworn on 8th December 2023 by Ms Lisa Anyango Amenya, one of the Directors of the 5th respondent company. She confirmed that the 2nd, 3rd, 4th, 5th & 7th respondents have a pending application before the Court seeking enforcement of the First Partial Arbitral Award issued on 22nd June 2022. She averred that subsequent to that application, the Arbitrator delivered a Final Award on 27th September 2022, followed by a Correcting Memorandum on 27th October 2022. She emphasized the necessity of placing the Final Award before the Court, noting that it had not been issued at the time the enforcement application was filed. She asserted that the inclusion of the Final Award issued on 27th September 2022 and the Correcting Memorandum issued on 27th October 2022, it is essential for the Court to effectively and conclusively determine the real issues in dispute between the parties herein.
24. The two applications were canvassed by way of written submissions which were highlighted on 3rd & 4th December 2025.
HCCOMM Misc. App. No. E250 of 2021
25. The applicants’ submissions were filed on 29th October 2023 by the law firm of Kamau Kuria & Company Advocates. The 2nd, 4th, 6th & 9th respondents’ submissions were filed by the law firm of Hamilton, Harrison & Mathews on 28th November 2023 and the 3rd, 5th & 7th respondents’ submissions were filed on 11th December 2023 by the law firm of Kairu & McCourt Advocates.
26. Dr. Kamau Kuria (SC), learned Counsel for the applicants submitted that following the invitation of 23rd February 2021, the 2nd respondent, represented by the law firm of Kairu & McCourt Advocates, confirmed the existence of a dispute to be adjudicated upon, prompting the 1st respondent, who had not been validly appointed under Article 82 of the Memorandum and Articles of Association of the 1st applicant or under Section 16 of the Arbitration Act, to convene a preliminary arbitral meeting and invite parties to propose dates. He contended that this unilateral action contravened the provisions of Section 19 of the Arbitration Act, which mandates equal treatment of parties and a fair opportunity to present one’s case, as the applicants had previously raised concerns about bias in letters dated 12th & 18th March 2021.
27. Dr. Kamau Kuria (SC), argued that despite the applicants’ objections, the 1st respondent proceeded with the meeting on 16th March 2021 and issued Procedural Order No. 1, effectively reconstituting the parties by converting certain respondents into claimants and former claimants into respondents, and directing service of statements of claim without addressing whether the arbitration had been lawfully terminated by the Applicants’ withdrawal on 17th February 2021. Senior Counsel submitted that the applicants immediately protested through letters and filed a Challenge to the Competence of Arbitration and the Arbitrator under Sections 13, 14 and 15 of the Arbitration Act on 22nd March 2021, asserting that the 1st respondent’s impartiality and independence were compromised, and that the arbitration conducted was unlawful.
28. He contended that the 1st respondent disregarded the doctrine of functus officio, as enunciated by the Supreme Court in Odinga v Independent Electoral & Boundaries Commission [2013] KESC 8 (KLR), by reviewing and overturning his own prior decision of 16th March 2021 to determine jurisdiction separately from the merits, by issuing Procedural Order No. 3 on 10th June 2021 to consolidate jurisdiction and merits’ issues, and dismissing the applicants’ challenge to his competence. Counsel asserted that the 1st respondent’s conduct demonstrates bias, dishonesty, and professional incompetence, evidenced by his failure to recognize that the Arbitration was terminated by operation of law, disregard for Sections 15 & 16 of the Arbitration Act regarding termination and appointment of Arbitrators, and improper engagement in formulating disputes and defining parties, contrary to the principle established by the Court of Appeal in Independent Electoral and Boundaries Commission v Mule & 3 others [2014] KECA 890 (KLR).
29. Dr. Kamau Kuria (SC) stated that by proceeding without hearing submissions on the legality of his appointment, the termination of arbitration, or the existence of a valid Arbitration Agreement, the 1st respondent violated the provisions of Section 19 of the Arbitration Act, embodying natural justice, and rendered his decisions null and void, as supported by the finding in R v Lambert [1957] EA 575 and DLG v Laing Investments (Bracknell) Ltd 60 BLR 112. Senior Counsel further stated that on 22nd June 2021, the 1st respondent issued a Ruling asserting impartiality and competence despite overwhelming evidence of bias and prior judicial findings of incompetence, disregarding provisions in the Memorandum and Articles of association and statutory law under the Insurance Act governing valid Shareholder status and Arbitration procedures. He contended that the Arbitration proceedings initiated without lawful authority violated the provisions of Article 82 of the Memorandum and Articles of association of the 1st applicant, Sections 15, 16 & 19 of the Arbitration Act, and fundamental principles of natural justice, thus the resulting Award is unenforceable and contrary to public policy.
30. Senior Counsel submitted that the 1st respondent disregarded their objection to the holding of Arbitral proceedings, as reflected in the supplementary affidavit of Mr. Evans Nyagah. Senior Counsel claimed that the meeting of 16th March 2021 resulted in Procedural Order No. 1, which dictated the sequence and timing of submissions while redefining parties’ roles and failed to address whether the Arbitration had been terminated by withdrawal. Further, that the applicants’ letters of 18th March 2021 highlighted the 1st respondent’s partisanship, noting that he acted as an Advocate for the respondents, rather than as an impartial umpire, while the respondents’ representatives focused solely on Shareholding disputes rather than proper procedure under Article 82 of the Memorandum and Articles of association of the 1st applicant.
31. It was submitted by Senior Counsel that following the rejection of a stay of proceedings on 12th April 2021, the applicants filed under protest, replies to the respondents’ statements of claim, asserting that Article 82 of the Memorandum and Articles of association of the 1st applicant did not constitute a valid Arbitration Agreement and that certain entities were not valid Shareholders under the said Memorandum and the Insurance Act. He explained that the trial before the Arbitrator between 10th & 14th January 2022 involved evidence in support of the applicants’ defence, while an Amended Challenge to the competence of Arbitration and Arbitrator was filed on 15th May 2021. He stated that the applicants further challenged Procedural Direction No. 3 and the Ruling of 8th June 2021, asserting that the 1st respondent had predetermined the outcome of jurisdictional and merit issues, thereby violating the rules of natural justice, the functus officio doctrine, and the Arbitral framework established in the Memorandum and Articles of association of the 1st applicant.
32.
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