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ELCAllowedELC Case No. 27 of 2019· [2026] KEELC 3236 (KLR)

Muchewa Limited v Adder Company Limited (Environment and Land Case 27 of 2019) [2026] KEELC 3236 (KLR)

Environment and Land Court
22 May 2026
TMT. Murigi
2,689 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court can still appoint an arbitrator after sending your dispute to arbitration, if the other side stalls.

What this practically means

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Executive summary

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By a Notice of Motion dated 7th February 2025 under Order 46 Rule 2 of the Civil Procedure Rules and Section 12(9) of the Arbitration Act, the Plaintiff sought appointment of an arbitrator (or authorization of the Chairperson of the Chartered Institute of Arbitrators to appoint one) to resolve a dispute arising from a lease agreement dated 21st December 2014. The Plaintiff explained that although Mogeni J. had referred the matter to arbitration on 16th May 2024, the Defendant ignored repeated letters proposing arbitrators, and the Chartered Institute advised the Plaintiff to seek the Court's assistance. The Defendant opposed through a Preliminary Objection and Grounds of Opposition, arguing that the referral order rendered the Court functus officio and lacking jurisdiction, that the application offended Order 46(2), and that the arbitration clause was vague and inoperative. The court framed two issues: whether it was functus officio, and whether the Applicant was entitled to the orders sought. Relying on Telkom Kenya Limited v John Ochanda and Jersey Evening Post Limited v Al Thani, the court held that a reference to arbitration is an interlocutory order that does not finally determine rights, so the Court retained its supervisory jurisdiction. It further found that the arbitration clause's failure to specify an appointing authority did not invalidate it, and that Section 12 of the Arbitration Act and Order 46 Rule 5 conferred power to appoint where parties fail to agree within 30 days. The Defendant had not filed submissions. The application was allowed: the Chairperson of the Chartered Institute of Arbitrators, Kenya Branch, was authorized to appoint a suitable arbitrator within 21 days, with costs to the Plaintiff.

Key legal issues

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01

Whether the Court became functus officio upon referring the matter to arbitration on 16th May 2024

Holding

The Court is not functus officio; the reference order was interlocutory and did not finally determine the parties' rights

Reasoning

The Court distinguished final decisions from interlocutory references. The ruling of 16th May 2024 stayed proceedings and referred the dispute to arbitration without determining rights on the merits. No arbitral tribunal had been constituted and no award rendered, so the Court had not performed all its duties in the matter and retains statutory jurisdiction under the Arbitration Act.

p. 8
02

Whether the Court has jurisdiction to appoint an arbitrator where the arbitration clause omits an appointing authority and the Defendant failed to participate

Holding

The Court has jurisdiction under Section 12 of the Arbitration Act and Order 46 Rule 5 of the Civil Procedure Rules, and the Applicant met the conditions for appointment

Reasoning

Section 12 expressly confers jurisdiction on the Court to appoint an arbitrator where parties fail to constitute the tribunal, and Order 46 Rule 5 empowers appointment where parties cannot agree within 30 days of a written request. The Plaintiff proposed arbitrators by letters of 11th June 2024 and 1st July 2024, which the Defendant ignored, rendering the clause inoperative as to appointment; the omission of an appointing authority did not invalidate the clause.

p. 12

Legal principles established

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  • A reference to arbitration is an interlocutory order that does not render the referring court functus officio or extinguish its supervisory jurisdiction under the Arbitration Act.
  • An arbitration clause that does not expressly specify an appointing authority is not thereby rendered null or inoperative; the Court may appoint an arbitrator under Section 12 of the Arbitration Act.

Court orders

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  1. 1.The Chairperson of the Chartered Institute of Arbitrators, Kenya Branch, is authorized to appoint a suitable arbitrator in this matter within twenty-one (21) days of the date of the ruling
  2. 2.The Plaintiff is awarded costs of the application

Authorities

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Legislation

  • Arbitration ActSection 12(9)
  • Arbitration ActSection 12(2)
  • Arbitration ActSection 12
  • Arbitration ActSection 6(2)
  • Arbitration ActSection 10
  • Civil Procedure RulesOrder 46 Rule 2
  • Civil Procedure RulesOrder 46 Rule 5
  • Arbitration Act 1995

Cases cited (8)

  • Rao v Shreeji Chemicals Limited and 3 others
    (Petition E005 of 2021) [2023] KEHC 24600 (KLR)
  • Heritage Consultants Ltd v Permanent Secretary, Ministry of Regional Development
    [2013] eKLR (also [2013] KEHC 3429 (KLR))
  • Everett Aviation (Charter) Limited v Jubilee Insurance Company Limited
    [2020] eKLR
  • Telkom Kenya Limited vs John Ochanda
    (2014) eKLR
  • Jersey Evening Post Limited v Al Thani
    (2002) JLR
  • Raila Odinga & 2 Others Vs Independent Electoral and Boundaries Commission & 3 Others
    2013 eKLR
  • Owners of Motor Vessel 'Lillian S' vs Caltex Oil (Kenya) Limited
    (1989) eKLR
  • Samuel Kamau Macharia & Another vs Kenya Commercial Bank Limited & 2 Others
    [2012] eKLR
Jurisdiction invoked
Section 12(9) of the Arbitration Act and Order 46 Rule 2 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Muchewa Limited v Adder Company Limited (Environment and Land Case 27 of 2019) [2026] KEELC 3236 (KLR)", Case Analysis (2026). ELC Case No. 27 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3236/eng@2026-05-22

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.