A group of Catholic nuns has received a respite after a court threw out a contractor’s bid to remove an arbitrator from a Sh10 million construction dispute.
The contractor, Envirocheck Limited, wanted arbitrator Henry Ndugah Odongo ousted from an ongoing dispute that pits the company against the Sisters of Notre Dame de Namur.
The dispute stemmed from a contract that the nuns awarded the company for the construction of an administration block and classrooms at Kabras/Chemuche in Kakamega County.
The project was expected to be completed by March 2021 but the contractor did not complete the project despite receiving full payment, according to court papers.
The parties convened a meeting and it was agreed that the company would be given an additional variation sum of Sh10 million as the last payment
Still, the contractor failed to complete the project which necessitated the nuns to file a suit at the High Court in Kakamega.
Last June, the court directed that the matter be referred to arbitration based on a clause of the contract between the parties.
Mr Odongo was appointed as the arbitrator but the company claimed that the appointment of the arbitrator was done in contravention of the arbitration agreement.
It claimed that it had never been served with a request for the appointment of an arbitrator under Rule 5 of the Chartered Institute of Arbitrators Rules 2020.
Through its representative Lawrence Sean Bifwoli, the firm said Mr Odongo was not qualified to arbitrate the matter because he was not a quality surveyor. It sought to have the arbitral proceedings set aside and vacated and start afresh as per the arbitration agreement.
But Justice Alfred Mabeya dismissed the request and ruled that the dispute was properly referred to the arbitral forum.
“The parties in this case voluntarily executed an agreement concerning the Construction of the Administration/Classroom Block. Under the arbitral clause, both the contractor and the Sisters were at liberty to appoint an arbitrator,” said the judge.
He said the bid to remove the arbitrator was an attempt to overturn the ruling in the Kakamega suit, where the court permitted that an arbitrator be appointed.
Concerning the qualifications of Mr Odongo, the judge said it was an afterthought.
“The contract did not specify the qualifications of the arbitrator and I hold that the arbitrator is qualified and competent to adjudicate the dispute,” ruled Justice Mabeya.
He also dismissed the company’s claim that it was not a party to the process of appointing the arbitration.
The judge said according to the record, there was correspondence between the parties on the appointment of the arbitrator.
“The letter of appointment of the arbitrator by the chairman, the Chartered Institute of Arbitrators Kenya branch and the letter for accepting the appointment to Mr Odongo was all copied to all the parties,” he said.
The judge ruled that the arbitrator’s appointment was lawful and regular. The company had full notice of the fact that the nuns had initiated the process of selecting the arbitrator and did not have any basis for claiming that it was not part of the selection process.
“In the premises, I find that the arbitrator was properly selected. There is no basis to set aside or vacate the arbitral proceedings or to have them commence again. Further, I find that the application is fatally defective.
The attempted challenge does not fit the requirements under section 14 of the Arbitration Act. The challenge should have commenced by a statement to be lodged with the arbitrator for his decision,” said the judge.
