Farm Concern International v Tearfund Uk

6. Mr. Nderitu, S.C was of a different view. He put forward the arguments that, his client is apprehensive that it will suffer due process violations by, amongst other the Defendant, the Kigali International Arbitration Centre ‘KIAK’, and the arbitral tribunal of 3 arbitrators appointed by KIAK. 7. And, that it would be imprudent for the plaintiff to ‘lie on the tracks of history’ (i.e. put up with the violations in the Kigali arbitral process) and ‘wait for the tracks of the future to run over it’ (later put up with enforcement proceedings before this honourable court of an arbitral Award from Kigali which may ultimately prove unenforceable due to due process violations of a fundamental nature).’ 8. He is of the opinion that Foreign Judgements (Reciprocal Enforcement) Act of Kenya will be impaired with irreparable damage to both parties in the event of the foreign award being registered. According to him, this grave consequence should be averted through these proceedings. He opines that there is no prejudice that will be suffered if the court hears the substantive dispute altogether. 9. After the above foundation, the plaintiff argued that this court has jurisdiction under: a) article 2(5) of the Constitution which adopts the general principles of international law as part of our law. Specifically, noting that the right to be heard is a fundamental and universal human right, and is enshrined in international instruments including Universal Declaration of Human Rights (UDHR) and International Covenant on Civil and Political Rights (ICCPR) b) Artcle 2(6) of the Constitution…such one convention is the New York Convention on the recognition and enforcement of Foreign Arbitral Awards to which Kenya acceded with a reciprocity reservation c) Article 165(3) where the High Court has unlimited jurisdiction as well as jurisdiction to determine applications for violation of rights. 10. The plaintiff emphasized on the centrality of the New York Convention as Kenya has ratified it and is of particular relevant to these proceedings for it acknowledges due process requirements as fundamental rights of the parties; and if an arbitral award is not enforceable, according to the Convention, it would not meet the due process requirements. 11. The plaintiff also elaborated that the High court exercises unlimited jurisdiction in granting protection reliefs under section 7 of the Arbitration Act. The court may also exercise its inherent jurisdiction under the Civil Procedure Act ‘to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. To the plaintiff this is a perfect case of violation of due process resulting into injustice. 12. They therefore beseeched the court to assume jurisdiction and deal with the issues raised. 13. Analysis and Determination 14. The issue at hand is: whether this court has jurisdiction over an arbitration in Kigali, Rwanda. 15. The respondent argued that the parties provided for an arbitration clause in their agreement to the effect that the seat of arbitration shall be Kigali, Rwanda; and the laws governing the contract shall be the laws of Rwanda. They also stated that an objection to the jurisdiction of the arbitral tribunal was raised by the plaintiff before the tribunal which ruled that it has jurisdiction. Subsequently, parties submitted to the tribunal and filed pleadings. 16. The quarrel the plaintiff has fastened is what it terms as lack of due process in the Kigali based tribunal. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19241/eng@2025-12-18 2

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17. Two important matters arise here. First, arbitral tribunal in Kigali declined the objection on jurisdiction and declared that it has jurisdiction to try the dispute. Second, parties agreed in the agreement that the seat of arbitration is Kigali, and the law governing the contract is the laws of Rwanda. Rwanda has an arbitration law that governs arbitrations. 18. It is important to re-state a fundamental legal doctrine in arbitration; that the arbitral tribunal is competent to determine its jurisdiction, including deciding on whether an arbitration agreement is valid or exists. Kompetenz-Kompetenz principle. 19. The arbitral tribunal in Kigali was alive to this fundamental principle. The principle promotes, respects and upholds party autonomy in the choice of arbitration as the site or forum for dispute resolution. 20. The court cannot re-write the contract for the parties. Euromec International Ltd Shandong Taikai Power Engineering Co Ltd KEHC 93 KLR. 21. The laws governing the contract is the laws of Rwanda. 22. I should state that due process in arbitration stemming from the arbitration agreement spans to the forum for arbitration, to the governing laws, permitted court interventions and the general due process within the court system, to the arbitral proceedings, to adoption and enforcement of awards procedures etc. The plaintiff seems to have passed an indictment that there is no due process in arbitration in Rwanda on the basis that the law does not provide for an appeal where an objection to jurisdiction is declined by the arbitral tribunal. In this context and framing, do not think there is any or any legal or sufficient justification for this court to take jurisdiction over this dispute. I have stated enough to determine the PO. Conclusion and orders 23. Accordingly, I find that this court lacks jurisdiction to try the dispute. DATED, SIGNED AND DELIVERED AT NAIROBI THROUGH MICROSOFT TEAMS ONLINE APPLICATION THIS 18.12.25 -----------------F. GIKONYO M JUDGE In the presence of: Nderitu for Plaintiff Ms Opiyo for defendant CA Kinyua https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19241/eng@2025-12-18 3

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