Introduction
1. By a Chamber Summons Application dated 9th February 2026, brought under Section 12 of the Arbitration Act, 1995, the Applicant seeks the assistance of this Court to empower the Chairperson of the Chartered Institute of Arbitrators (Kenya Branch) to appoint a sole arbitrator to hear and determine a dispute between the parties.
2. The Application arises from an underlying commercial dispute where the Applicant claims a sum of Kshs. 64,031,523.23 for clearing and forwarding services allegedly rendered to the Respondent in respect of consignments imported for the Pamoja CHAN 2024 Tournament co-hosted by Kenya in August 2025.
3. The Applicant contends that despite formal demand and invocation of the dispute resolution clause (Clause 7) under the Contract for Clearing and Forwarding Services dated 1st May 2025, the Respondent refused to engage in the appointment of an arbitrator.
4. The Respondent, vide the affidavit of Hussein Mohammed sworn on 15th February 2026, opposed the application. Their case is, first, that they did not enter into the alleged contract. They contend that the document was executed by one Harold Ndege, a former employee who had neither express nor implied authority to bind Football Kenya Federation (“FKF”). They further rely on Article 44(1) of the FKF Constitution, which provides that the President represents FKF legally and is entitled to sign for FKF. They consequently contend that the alleged contract is void and incapable of founding an arbitration.
Background and Submissions
5. According to the Supporting and Supplementary Affidavits sworn by Canary Gatere Wachira on behalf of the Applicant, the parties entered into a written contract on 1st May 2025. Clause 7 of the said Agreement provides that any disputes arising shall be resolved amicably or through arbitration in Nairobi, Kenya. Following non-payment of invoices issued under the contract, the Applicant formally declared a dispute on 19th January 2026 and subsequently proposed that the Chairperson of the Chartered Institute of Arbitrators (Kenya Branch) appoint a sole arbitrator.
6. Through a letter dated 4th February 2026 from its advocates, Ochutsi Munyendo & Company Advocates, the Respondent expressly denied the existence of any contract between the parties, maintained that the scope of work fell under the Local Organizing Committee of PAMOJA CHAN 2024, and declined to participate in arbitral proceedings.
7. Counsel for the Applicant argued that the Respondent’s outright denial of the contract and refusal to cooperate confirms the existence of an arbitrable dispute. Citing Euromec International Limited v Shandong Taikai Power Engineering Company Limited [2021] KEHC 93 (KLR), Counsel submitted that under the doctrine of Kompetenz-Kompetenz (Section 17 of the Arbitration Act), objections regarding contract formation, validity, and authority are matters reserved for the arbitral tribunal, not the Court at this preliminary stage.
8. Relying on Mulinge v County Government of Mombasa [2023] KEHC 27249 (KLR) and Cubic Business Solutions v Spectre International Limited [2021] KEHC 9351 (KLR), the Applicant further urged that Section 12 empowers the High Court to intervene to cure a failed appointment mechanism and preserve the arbitral process.
9. Conversely, the Respondent opposed the application on grounds that Section 10 of the Arbitration Act limits judicial intervention, that no valid contract or arbitration agreement exists, and that the Applicant ought to have unilaterally appointed an arbitrator under Section 12(4). According to the Respondent, the Applicant has prematurely invoked the Court's jurisdiction. Their position is that clause 7 of the alleged contract merely provides for disputes to be resolved amicably or through arbitration in Nairobi and does not designate an appointing authority. They argue that, under section 12 of the Act, the parties must first pursue the statutory appointment process, and that the Court becomes involved only in the circumstances prescribed by that section.
10. The Respondent further asserts that procurement irregularities and lack of presidential signature under the FKF Constitution invalidate the alleged agreement. They assert that Mr. Harold Ndege, who allegedly signed the agreement, is a former employee who had neither express nor implied authority to bind the Federation.
Analysis and Determination
11. Having considered the Chamber Summons, supporting affidavits, written submissions, and statutory framework, I find the following issues falling for determination:
i. Whether a dispute exists between the parties within the meaning of the arbitration agreement.
ii. Whether the appointment mechanism has failed or been frustrated, warranting Court assistance under Section 12 of the Arbitration Act.
iii. Whether the Respondent's objections regarding contract existence, authority, and validity bar this Court from facilitating the appointment.
Whether there exists a dispute between the parties
12. The first question is whether there is, in fact, a dispute between the parties falling within the scope of the arbitration agreement. My answer to the question is in the affirmative.
13. The Applicant's case is straightforward. It asserts that on 1st May 2025 it entered into a Contract for Clearing and Forwarding Services with the Respondent, rendered the contracted services in relation to the import and re-export of goods for Pamoja CHAN 2024, issued invoices and delivery notes which were acknowledged, and remains unpaid in the sum of Kshs.64,031,523.23.
14. The Respondents dispute the claim in its entirety. They deny the existence and validity of the contract, deny that the person who executed it had authority to bind FKF, and contend that the purported agreement is void ab initio.
15. The fact that the Respondents deny the existence of the contract does not mean that there is no dispute for purposes of arbitration. On the contrary, a dispute as to the formation, validity, enforceability or applicability of an agreement containing an arbitration clause is itself capable of falling within the jurisdiction of the arbitral tribunal.
16. Under the doctrine of kompetenz-kompetenz embodied in section 17 of the Arbitration Act. The tribunal is empowered to determine its own jurisdiction, including objections concerning the existence or validity of the arbitration agreement.
17. In Euromec International Limited v Shandong Taikai Power Engineering Company Limited [2021] KEHC 93 (KLR), the Court held that it is the arbitrator, rather than the Court, who has authority to determine disputes relating to the interpretation, applicability, enforceability or formation of the agreement, including an assertion that the agreement is void or voidable. The Court stated that:
“The other reason to bear in mind is that the Arbitrator, and not the court has authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of the agreement including, but not limited to any claim that all or any part of the agreement is void or voidable. In Rent-A-Center, West, Inc v Jackson31 a 5-4 decision held that unconscionability challenge should go to the arbitrator.”
18. In the premises, I therefore decline to determine, at this stage, whether the contract was validly entered into or whether its signatory had authority to bind FKF. Those questions remain open to the arbitral tribunal. The Respondents' objections go to the merits and jurisdiction of the arbitral tribunal and do not, at this stage, defeat the Applicant's request for the Court's assistance in constituting that tribunal.
Whether the appointment mechanism has failed or been frustrated, warranting Court’s assistance under Section 12 of the Act
19. The Applicant submits that the appointment mechanism has failed because clause 7 of the agreement provides for arbitration in Nairobi but does not prescribe the manner of appointment of the arbitrator or designate an appointing authority. The Applicant thereafter proposed that the Chairperson of the Chartered Institute of Arbitrators (Kenya Branch) appoint a sole arbitrator.
20. The Respondents declined to participate in the process and instead challenged the validity of the agreement and the authority of the person who executed it.
21. Section 12 of the Arbitration Act recognises the parties' freedom to agree upon the procedure for appointment of an arbitrator. It does not, however, contemplate that the absence of an agreed appointment procedure should operate to defeat an otherwise clear agreement to arbitrate. Where the parties have agreed to arbitration but have omitted to provide the machinery for constitution of the tribunal, the Court may intervene to facilitate the implementation of that agreement.
22. In the present case, the omission in clause 7 is compounded by the Respondents' unequivocal refusal to participate in the appointment process. The Applicant proposed a neutral appointing authority, but the proposal was not accepted. The parties have therefore reached an impasse. It would serve no useful purpose to require the Applicant to undertake further attempts to obtain the Respondents' cooperation when their position is that they do not recognise either the agreement or the arbitration clause.
23. The Respondent's argument that the Applicant should have unilaterally appointed a sole arbitrator under Section 12(4) is misplaced. Section 12(4) applies where the arbitration agreement itself provides a default mechanism for unilateral appointment upon notice. Where the agreement contains no such default procedure, judicial assistance under Section 12 is the proper statutory remedy.
24. In Mulinge v County Government of Mombasa & another [2023] KEHC 27249 (KLR), the Court held that section 12 permits the High Court to intervene to facilitate the appointment of an arbitrator where the parties disagree, or one party is unwilling to cooperate in the process leading to the appointment.
25. Similarly, in Cubic Business Solutions v Spectre International Limited [2021] KEHC 9351 (KLR), the Court (Fred A. Ochieng J - as he then was), recognizing the power of the Court to issue directions necessary to facilitate the arbitral process where the appointment mechanism has failed, stated as follows: -
“Pursuant to Section 12 of the Arbitration Act, parties are free to agree on a procedure of appointing the arbitrator or arbitrators. By necessary implications, that means that it is not mandatory that the procedure for the appointment of the arbitrator be provided for in the arbitration agreement……
In my considered opinion, the Court has an inherent power to make such orders or to give such directions as may be necessary for the ends of justice.
As the parties herein had expressly agreed to have disputes resolved through arbitration, I find that it is necessary for the Court to make such orders or to give such directions as would give effect to the terms of the contract.”
26. I am therefore unable to accept the Respondents' contention that the Applicant must first obtain their agreement on the identity of the arbitrator. Such a construction would allow one party to defeat an arbitration agreement by the simple expedient of refusing to participate in the appointment process. Section 12 ought to be construed in a manner that preserves and gives effect to the parties' agreement to arbitrate, rather than one that renders it nugatory.
27. In the result, I find that the circumstances warrant the Court's assistance in constituting the arbitral tribunal under Section 12 of the Arbitration Act. In reaching this conclusion, I am alive to the fact that under Section 10 of the Arbitration Act, this Court is bound by the doctrine of minimal intervention, and my role at this stage is purely administrative and facilitative, not adjudicative of substantive merits.
28. In the result, the Chamber Summons dated 9th February 2026 is merited and is hereby allowed. I therefore make the following orders:
i. The Chairperson of the Chartered Institute of Arbitrators (Kenya Branch) is hereby empowered and requested to appoint a Sole Arbitrator to hear and determine the dispute arising between the Applicant and the Respondent under the Contract dated 1st May 2025.
ii. The appointment of the Sole Arbitrator shall be made within fourteen (14) days from the date of service of this Order upon the Chartered Institute of Arbitrators (Kenya Branch).
iii. The costs of this Application shall be costs in the arbitration.
29. It is so ordered.
DATED, SIGNED, AND DELIVERED AT NAIROBI
THIS 17TH DAY OF SEPTEMBER 2026
HON. MR. JUSTICE MOSES ADO
Judge of the High Court
In the Presence of:
Moses C/A
Gitonga……………… for the Applicant
Oruko……………for the Respondent
1. By a Chamber Summons Application dated 9th February 2026, brought under Section 12 of the Arbitration Act, 1995, the Applicant seeks the assistance of this Court to empower the Chairperson of the Chartered Institute of Arbitrators (Kenya Branch) to appoint a sole arbitrator to hear and determine a dispute between the parties.
2. The Application arises from an underlying commercial dispute where the Applicant claims a sum of Kshs. 64,031,523.23 for clearing and forwarding services allegedly rendered to the Respondent in respect of consignments imported for the Pamoja CHAN 2024 Tournament co-hosted by Kenya in August 2025.
3. The Applicant contends that despite formal demand and invocation of the dispute resolution clause (Clause 7) under the Contract for Clearing and Forwarding Services dated 1st May 2025, the Respondent refused to engage in the appointment of an arbitrator.
4. The Respondent, vide the affidavit of Hussein Mohammed sworn on 15th February 2026, opposed the application. Their case is, first, that they did not enter into the alleged contract. They contend that the document was executed by one Harold Ndege, a former employee who had neither express nor implied authority to bind Football Kenya Federation (“FKF”). They further rely on Article 44(1) of the FKF Constitution, which provides that the President represents FKF legally and is entitled to sign for FKF. They consequently contend that the alleged contract is void and incapable of founding an arbitration.
Background and Submissions
5. According to the Supporting and Supplementary Affidavits sworn by Canary Gatere Wachira on behalf of the Applicant, the parties entered into a written contract on 1st May 2025. Clause 7 of the said Agreement provides that any disputes arising shall be resolved amicably or through arbitration in Nairobi, Kenya. Following non-payment of invoices issued under the contract, the Applicant formally declared a dispute on 19th January 2026 and subsequently proposed that the Chairperson of the Chartered Institute of Arbitrators (Kenya Branch) appoint a sole arbitrator.
6. Through a letter dated 4th February 2026 from its advocates, Ochutsi Munyendo & Company Advocates, the Respondent expressly denied the existence of any contract between the parties, maintained that the scope of work fell under the Local Organizing Committee of PAMOJA CHAN 2024, and declined to participate in arbitral proceedings.
7. Counsel for the Applicant argued that the Respondent’s outright denial of the contract and refusal to cooperate confirms the existence of an arbitrable dispute. Citing Euromec International Limited v Shandong Taikai Power Engineering Company Limited [2021] KEHC 93 (KLR), Counsel submitted that under the doctrine of Kompetenz-Kompetenz (Section 17 of the Arbitration Act), objections regarding contract formation, validity, and authority are matters reserved for the arbitral tribunal, not the Court at this preliminary stage.
8. Relying on Mulinge v County Government of Mombasa [2023] KEHC 27249 (KLR) and Cubic Business Solutions v Spectre International Limited [2021] KEHC 9351 (KLR), the Applicant further urged that Section 12 empowers the High Court to intervene to cure a failed appointment mechanism and preserve the arbitral process.
9. Conversely, the Respondent opposed the application on grounds that Section 10 of the Arbitration Act limits judicial intervention, that no valid contract or arbitration agreement exists, and that the Applicant ought to have unilaterally appointed an arbitrator under Section 12(4). According to the Respondent, the Applicant has prematurely invoked the Court's jurisdiction. Their position is that clause 7 of the alleged contract merely provides for disputes to be resolved amicably or through arbitration in Nairobi and does not designate an appointing authority. They argue that, under section 12 of the Act, the parties must first pursue the statutory appointment process, and that the Court becomes involved only in the circumstances prescribed by that section.
10. The Respondent further asserts that procurement irregularities and lack of presidential signature under the FKF Constitution invalidate the alleged agreement. They assert that Mr. Harold Ndege, who allegedly signed the agreement, is a former employee who had neither express nor implied authority to bind the Federation.
Analysis and Determination
11. Having considered the Chamber Summons, supporting affidavits, written submissions, and statutory framework, I find the following issues falling for determination:
i. Whether a dispute exists between the parties within the meaning of the arbitration agreement.
ii. Whether the appointment mechanism has failed or been frustrated, warranting Court assistance under Section 12 of the Arbitration Act.
iii. Whether the Respondent's objections regarding contract existence, authority, and validity bar this Court from facilitating the appointment.
Whether there exists a dispute between the parties
12. The first question is whether there is, in fact, a dispute between the parties falling within the scope of the arbitration agreement. My answer to the question is in the affirmative.
13. The Applicant's case is straightforward. It asserts that on 1st May 2025 it entered into a Contract for Clearing and Forwarding Services with the Respondent, rendered the contracted services in relation to the import and re-export of goods for Pamoja CHAN 2024, issued invoices and delivery notes which were acknowledged, and remains unpaid in the sum of Kshs.64,031,523.23.
14. The Respondents dispute the claim in its entirety. They deny the existence and validity of the contract, deny that the person who executed it had authority to bind FKF, and contend that the purported agreement is void ab initio.
15. The fact that the Respondents deny the existence of the contract does not mean that there is no dispute for purposes of arbitration. On the contrary, a dispute as to the formation, validity, enforceability or applicability of an agreement containing an arbitration clause is itself capable of falling within the jurisdiction of the arbitral tribunal.
16. Under the doctrine of kompetenz-kompetenz embodied in section 17 of the Arbitration Act. The tribunal is empowered to determine its own jurisdiction, including objections concerning the existence or validity of the arbitration agreement.
17. In Euromec International Limited v Shandong Taikai Power Engineering Company Limited [2021] KEHC 93 (KLR), the Court held that it is the arbitrator, rather than the Court, who has authority to determine disputes relating to the interpretation, applicability, enforceability or formation of the agreement, including an assertion that the agreement is void or voidable. The Court stated that:
“The other reason to bear in mind is that the Arbitrator, and not the court has authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of the agreement including, but not limited to any claim that all or any part of the agreement is void or voidable. In Rent-A-Center, West, Inc v Jackson31 a 5-4 decision held that unconscionability challenge should go to the arbitrator.”
18. In the premises, I therefore decline to determine, at this stage, whether the contract was validly entered into or whether its signatory had authority to bind FKF. Those questions remain open to the arbitral tribunal. The Respondents' objections go to the merits and jurisdiction of the arbitral tribunal and do not, at this stage, defeat the Applicant's request for the Court's assistance in constituting that tribunal.
Whether the appointment mechanism has failed or been frustrated, warranting Court’s assistance under Section 12 of the Act
19. The Applicant submits that the appointment mechanism has failed because clause 7 of the agreement provides for arbitration in Nairobi but does not prescribe the manner of appointment of the arbitrator or designate an appointing authority. The Applicant thereafter proposed that the Chairperson of the Chartered Institute of Arbitrators (Kenya Branch) appoint a sole arbitrator.
20. The Respondents declined to participate in the process and instead challenged the validity of the agreement and the authority of the person who executed it.
21. Section 12 of the Arbitration Act recognises the parties' freedom to agree upon the procedure for appointment of an arbitrator. It does not, however, contemplate that the absence of an agreed appointment procedure should operate to defeat an otherwise clear agreement to arbitrate. Where the parties have agreed to arbitration but have omitted to provide the machinery for constitution of the tribunal, the Court may intervene to facilitate the implementation of that agreement.
22. In the present case, the omission in clause 7 is compounded by the Respondents' unequivocal refusal to participate in the appointment process. The Applicant proposed a neutral appointing authority, but the proposal was not accepted. The parties have therefore reached an impasse. It would serve no useful purpose to require the Applicant to undertake further attempts to obtain the Respondents' cooperation when their position is that they do not recognise either the agreement or the arbitration clause.
23. The Respondent's argument that the Applicant should have unilaterally appointed a sole arbitrator under Section 12(4) is misplaced. Section 12(4) applies where the arbitration agreement itself provides a default mechanism for unilateral appointment upon notice. Where the agreement contains no such default procedure, judicial assistance under Section 12 is the proper statutory remedy.
24. In Mulinge v County Government of Mombasa & another [2023] KEHC 27249 (KLR), the Court held that section 12 permits the High Court to intervene to facilitate the appointment of an arbitrator where the parties disagree, or one party is unwilling to cooperate in the process leading to the appointment.
25. Similarly, in Cubic Business Solutions v Spectre International Limited [2021] KEHC 9351 (KLR), the Court (Fred A. Ochieng J - as he then was), recognizing the power of the Court to issue directions necessary to facilitate the arbitral process where the appointment mechanism has failed, stated as follows: -
“Pursuant to Section 12 of the Arbitration Act, parties are free to agree on a procedure of appointing the arbitrator or arbitrators. By necessary implications, that means that it is not mandatory that the procedure for the appointment of the arbitrator be provided for in the arbitration agreement……
In my considered opinion, the Court has an inherent power to make such orders or to give such directions as may be necessary for the ends of justice.
As the parties herein had expressly agreed to have disputes resolved through arbitration, I find that it is necessary for the Court to make such orders or to give such directions as would give effect to the terms of the contract.”
26. I am therefore unable to accept the Respondents' contention that the Applicant must first obtain their agreement on the identity of the arbitrator. Such a construction would allow one party to defeat an arbitration agreement by the simple expedient of refusing to participate in the appointment process. Section 12 ought to be construed in a manner that preserves and gives effect to the parties' agreement to arbitrate, rather than one that renders it nugatory.
27. In the result, I find that the circumstances warrant the Court's assistance in constituting the arbitral tribunal under Section 12 of the Arbitration Act. In reaching this conclusion, I am alive to the fact that under Section 10 of the Arbitration Act, this Court is bound by the doctrine of minimal intervention, and my role at this stage is purely administrative and facilitative, not adjudicative of substantive merits.
28. In the result, the Chamber Summons dated 9th February 2026 is merited and is hereby allowed. I therefore make the following orders:
i. The Chairperson of the Chartered Institute of Arbitrators (Kenya Branch) is hereby empowered and requested to appoint a Sole Arbitrator to hear and determine the dispute arising between the Applicant and the Respondent under the Contract dated 1st May 2025.
ii. The appointment of the Sole Arbitrator shall be made within fourteen (14) days from the date of service of this Order upon the Chartered Institute of Arbitrators (Kenya Branch).
iii. The costs of this Application shall be costs in the arbitration.
29. It is so ordered.
DATED, SIGNED, AND DELIVERED AT NAIROBI
THIS 17TH DAY OF SEPTEMBER 2026
HON. MR. JUSTICE MOSES ADO
Judge of the High Court
In the Presence of:
Moses C/A
Gitonga……………… for the Applicant
Oruko……………for the Respondent