COURT DECLINES TO APPOINT AN ARBITRATOR DUE TO INVOCATION OF WRONG LAW By Andrew Halonyere - Advocate “….

had the applicant followed the English law under which the contract had been prepared, to the letter, it was not necessary to file this case as they would have proceeded under section 17 to appoint a sole arbitrator and merely notify the other side of the appointment…..” Kenya Oil Company Ltd & Kenya Petroluem Ltd v Kenya Petroluem Refineries Ltd [Eklr 2010] (www.kenyalaw.org) High Court at Nairobi M.K. Koome J July 9, 2010. The High Court has dismissed an application to hear and determine a dispute between parties under a processing agreement citing invocation of wrong law. In her ruling, Lady Justice Koome held that the application was defective as it was premised on the Kenyan Law yet the agreement was governed by the English law. The application was brought by Kenya Oil Company Limited and Kobil Petroleum Limited (plaintiffs) under section 12 of the 1995 Arbitration Act and Rule 3(1) of the Arbitration Rules of 1997, seeking orders that the High Court do appoint a single Arbitrator to hear and determine a dispute between the plaintiffs and Kenya Petroluem Refineries Limited (defendant) under the processing agreement. The plaintiffs also sought conservatory orders and gave a list from which the High Court could appoint a sole Arbitrator. The plaintiffs alleged that they entered into the processing agreement with Kenya Petroluem Refineries Limited, and according to them, the defendant breached the contract when they issued a notice to terminate the processing agreement without giving any reasons. As such, the plaintiffs sought that the dispute be referred to arbitration, which however was declined by the defendant. The Plaintiff’s case was that the defendant’s refusal to appoint an arbitrator to hear and determine the dispute declared by the plaintiff was a breach of the plaintiffs’ contractual and statutory obligations to have all disputes under the contract determined through an arbitrator. He argued that the

allegation by the defendant that there was no dispute was usurpation of the arbitrators function and would prejudice the out come of the dispute and obstruct the arbitration proceedings, that under the arbitration Act, it was unlawful for one party to refuse to participate in the appointment of an arbitrator since the the agreement clearly provided for an arbitration clause hence, one party could not therefore obstruct the arbitration proceedings. Further, the plaintiff stated that for the court to rule that there was no dispute, as had been contended by the defendants, it would infringe on the plaintiffs fundamental rights to a fair trial and access to justice because that would be tantamount to blocking the plaintiff from ventilating their dispute according to the agreement through an arbitrator. It was also the Plaintiff’s case that the reason as to why the plaintiffs had applied for conservatory orders was precipitated by the defendant’s attempt to exclude the plaintiff from participating in an open tender process for the importation of the fuel. The defendant, in opposing the application submitted that there was no dispute between the parties capable of being referred to arbitration, arguing that the application was filed under the provisions of section 12 of the Arbitration Act and Rule 3(1) of the Arbitration Rules of 1997, whereas the processing agreement the subject matter herein, provided that the arbitration was to be in accordance with the English Arbitration Act 1950 or an enactment thereof for the time being in force. Further that the English Arbitration Act 1996 was the applicable law and it was different from section 12 of the Kenyan Arbitration Act in the sense that a decision of the High Court in respect of appointment of an arbitrator, could be appealed against, with the leave of the court, whereas, under the Arbitration Act 1995, the Court’s appointment of an arbitrator was final and the decision could not be appealed against.. On the issue of whether there was a dispute, the defendant submitted that section 6(1) of the English Arbitration Act of 1995, provided that a court may refer parties to arbitration unless it found that there was no dispute between the parties. According to the defendant, the agreement provided that either party could determine the contract by giving a notice of not less than 12 months and that the plaintiffs had earlier issued a notice pursuant to the same clause which clearly demonstrated that the party’s rights to terminate the contract were completely unfettered as long as the requisite notice was given.

and that had the plaintiffs followed the English Act. because there was a provision for the appointment of an arbitrator and if two parties fail to agree on the appointment of a sole arbitrator. it would lead to an erroneous decision because under the Kenyan law. the decision of the High Court was final. this application would not have been necessary. whether it would appoint an arbitrator and proceed to issue an interim order of injunction to preserve the status quo pending the determination of the dispute by the arbitrator. there was no prima facie case to warrant court to issue the conservatory orders.It was the defendant’s case that even if there was a dispute it was one of law. the court held that these proceedings were not governed by the Kenyan Arbitration Act. especially the provisions of sections 17. The issues for determination before the court were. The application was thus disallowed with cost to the defendant . Justice Koome having analyzed the submissions by both parties noted that the Kenyan Arbitration Act varied with the English Act. 1996 was applicable to this case as per the agreements. hence. In the defendant’s view that it could not have obstructed the arbitral proceedings merely by pointing out that there was no dispute. Lady Justice Koome also added that the other reason why she could not appoint an arbitrator was because the qualifications of the suggested names were not provided so as to guide it on whom to appoint based on the relevant skill and that was why the procedure of the appointment of the sole arbitrator was so elaborately provided to give room for objective selection. and one party refuses or fails to agree to appoint an arbitrator within a specified time. and held that the application was defective as it was premised on the Kenyan law not the English law which was provided for in the agreement. The Court concurred with the defendant that the English Arbitration Act. the other party may appoint his arbitrator as a sole arbitrator who can proceed with the arbitration. The court further noted that if it followed the provisions cited in the application. which should not be determined by an arbitrator but by the court and that nothing stopped the court in determining whether there existed a dispute or not under the English Arbitration Act. On the question of issuance of conservatory orders. the agreement had a termination clause and notice given to the plaintiffs was according to the agreement. under the Arbitration Act.

approves the appointment of – DANIEL M. Deputy Prime Minister and Minister for Local Government . 8068 THE RATING ACT (Cap. MUSALIA MUDAVADI.69 Dated July 16. Dated the 8th July. 267) THE MUNICIPAL COUNCIL OF MERU APPOINTMENT OF VALUER IN EXERCISE of the powers conferred by section 7 of the Rating Act. 2010. KIBUCHI As valuer to prepare the Draft Valuation Roll for Municipal Council of Meru.2010 GAZETTE NOTICE NO.Vol CXII – No . the Deputy Prime Minister and Minister for Local Government.

267) THE MUNCIPAL COUNCIL OF MERU SITE VALUE RATE IN EXERCISE of the powers conferred by section 4 (10) (b) of the Rating Act. approves adoption by Municipal Council of Meru of undeveloped “site value” for purposes of levying rates. Deputy Prime Minister and Minister for Local Government . the Deputy Prime Minister and Minister for Local Government. MUSALIA MUDAVADI.GAZETTE NOTICE NO. Dated the 8th July. 2010. 8069 THE RATING ACT (Cap.

Dated the 8th July. 2010. 266) THE MUNICIPAL COUNCIL OF MERU TIME OF VALUATION IN EXERCISE of the powers conferred by section 6 of the Valuation for Rating Act. the Deputy Minister and Minister for Local Government gives approval to the Municipal Council of Meru’s Resolution under Min.FSGP/29/2010 as follows: “That the time of valuation for the Municipal Council of Meru’s Valuation Roll shall be 31st December. 8070 THE VALUATION FOR RATING ACT (Cap. MUSALIA MUDAVADI. Deputy Prime Minister and Minister for Local Government . 2009”.GAZETTE NOTICE NO. No. SP.

GAZETTE NOTICE NO. 8071 THE VALUATION FOR RATING ACT (Cap. MUSALIA MUDAVADI. 2010. Deputy Prime Minister and Minister for Local Government. as required by paragraphs (c) and (e) respectively of this section”. . the Deputy Prime Minister and Minister for Local Government declares that “valuer in preparing any Draft Valuation Roll or draft Supplementary Valuation Roll. need neither value nor include in the roll the value of the land or the assessment for improvement rate. Dated the 8th July. 266) THE MUNICIPAL COUNCIL OF MERU DECLARATION IN EXERCISE of the powers conferred by section 6 of the Valuation for Rating Act.

2006. 6 of 2006) APPOINTMENT IN EXERCISE of the powers conferred by section 6 of the National Museums and Heritage Act.) to be a member of the National Museums of Kenya Board.GAZETTE NOTICE NO. the Minister for State for National Heritage and Culture appointsSWALEH SAUDA M. with effect from 2nd July. Minister of State for National Heritage and Culture . 2010. Dated the 5th July. 8072 THE NATIONAL MUSEUMS AND HERITAGE ACT (No. (DR. WILLIAM OLE NTIMAMA. 2010. for a period of three (3) years.

6 of 2006) DECLARATION OF A NATIONAL MONUMENT IN EXERCISE of the powers conferred by section 25 (1) (b) of the National Museums and Heritage Act. Dated the 5th July. 209/2378/9 measuring approximately one-acre.R. WILLIAM OLE NTIMAMA.GAZETTE NOTICE NO. 8073 THE NATIONAL MUSEUMS AND HERITAGE ACT (No. on L. Any objection to the declaration shall be lodged with the Minister within two months from the date of publication of this notice. No. Minister of State for National Heritage and Culture . declares the building specified in the schedule which he considers to be of historical interest to be a monument within the meaning of the Act. Nairobi Province. in Nairobi North District. 2010. situated within Pumwani Majengo Location. SCHEDULE PUMWANI COMMUNITY MEMORIAL HALL All that building known as the Pumwani Community Memorial Hall. the Minister of State for National Heritage and Culture in consultation with the National Museums.

Dated the 30th June. the Minister for Agriculture appointsJUSTINE N.J. 8074 THE STATE CORPORATIONS ACT (Cap. 446) KENYA SEED COMPANY LIMITED APPOINTMENT IN EXERCISE of the powers conferred by section 6 (1) (e) of the State Corporations Act. KOSGEI Minister for Agriculture . 2010. S. with effect from 1st July. for a period of three (3) years. 2010.GAZETTE NOTICE NO. SITTI (MRS) to be a member of the Board of the Kenya Seed Company.

446) CHEMILIL SUGAR COMPANY LIMITED APPOINTMENT IN EXERCISE of the powers conferred by section 6 (1) (b) of the State Corporations Act. the Minister for Agriculture appoints – ROBERT ILTARAMATWA KOCHALE to be a member of the Board of the Chemilil Sugar Company. for a period of three (3) years. 8075 THE STATE CORPORATIONS ACT (Cap. 2010. S.GAZETTE NOTICE NO. 2010. Dated the 30th June. KOSGEI Minister for Agriculture .J. with effect from 1st July.

) to be a member of the Board of the Management of Kenya Agricultural Research Institute.J. 2010. The minister for Agriculture appointsKARWITH KIUGU (PROF. with effect from 1st July. for a period of three (3) years. 250) APPOINTMENT IN EXERCISE of the powers conferred by section 15 (1) (f) of the Science and Technology Act. 8076 THE SCIENCE AND TECHNOLOGY ACT (Cap. S. 2010. Dated the 30th June. KOSGEI Minister for Agriculture .GAZETTE NOTICE NO.

boundary plan No.M. Nairobi. 8077 THE WILDLIFE (CONSERVATION AND MANAGEMENT) ACT (Cap. 2010. Dated 6th July. Nakuru District. . Survey of Kenya. N. Kenya Wildlife Service. 216/67.9 hectares situated within south-east of Nakuru Town. SCHEDULE LAKE ELEMENTAITA WILDLIFE SANCTUARY All that area of land measuring approximately 2533. Rift Valley Province. and a copy of which may be inspected at the office of the Director.GAZETTE NOTICE NO. Nairobi. 376) DECLARATION OF A WILDLIFE SACTUARY IN EXERCISE of the powers conferred by section 19 (1) of the Wildlife (Conservation and Management) Act. which is signed. the Minister for Forestry and Wildlife declares the area specified in the schedule to be a wildlife sanctuary. sealed and deposited at the Survey Records Office. WEKESA Minister for Forestry and Wildlife.

the Attorney-General appointsJOASH ODHIAMBO DACHE To be secretary to the Kenya Law Reform Commission.A. WAKO. Dated the 9th July. Attorney-General . 2010. 8078 THE LAW REFORM COMMISSION ACT (Cap.GAZETTE NOTICE NO. S. 3) APPOINTMENT IN EXERCISE of the powers conferred by section 2 (6) of the Law Reform Commission Act.

Dated the 9th July. Permanent Secretary. with immediate effect for the financial year 2010/2011. A. . DAVID M. 2006.GAZETTE NOTICE NO. 2010. 2005 and second schedule of the Public Procurement and Disposal Regulations.C. 3 of 2005) APPOINTMENT IN EXERCISE of the powers conferred by section 26 (4) of the Public Procurement and Disposal Act. Ministry of Justice. MUTEMI to be the Chairman of the Ministerial Tender Committee. MOHAMED. the Permanent Secretary. National Cohesion and Constitutional affairs appoints – AMB. 8079 THE PUBLIC PROCUREMENT AND DISPOSAL ACT (No.

00 a. to 5. MUTINDA. Tana Delta. Dated the 15th June. District Commissioner. J. Tana Delta. Tana Delta District. The copies so deposited are available for inspection free of charge by all persons interested at offices of the District Physical Planning Officer. The part development plan relates to land situated within Minjla Town. 8385 THE PHYSICAL PLANNING ACT (No. County Council of Tana River. Tana Delta. For Director of Physical Planning . Monday to Friday.O. within sixty (60) days from the date of publication of this notice and such representation or objection shall state the grounds on which it is made. 6 of 1996) COMPLETION OF PART DEVELOPMENT PLAN (PDP No.00 p. th Copies of the part development plan have been deposited for public inspection at the offices of the District physical planning Officer. County Council of Tana River. Box 201. Hola. Any interested person who wishes to make any representation in connection with or objection to the above-named part development plan may send such representations or objections in writing to be received by the District Physical Planning Officer.M. County Clerk. 2010.m. 2010. District Commissioner. Tana Delta. P.GAZETTE NOTICE NO. TRD/1355/2010/04 for Proposed Site for Sheikh Bulle Farah Abagada Islami Centre) NOTICE is given that the above-mentioned part development plan was completed on 15 May.m. between the hours of 8. County Clerk.

off Mombasa Road. the National Environment Management Authority. The construction of the transmission line will involve the following activities: • • • • • • • Valuation and compensation of affected people’s property and resettlement Land acquisition to accommodate line’s 30 m wide Right of Way (ROW) along the 110 km route. The proposed site starts from Voi Town located on the Mombasa-Nairobi Highway and runs westwards through Mwatate. Maktau to Taveta town covering a total distance of 110 km. The project anticipates the impacts and mitigation measures set out in the gazette.GAZETTE NOTICE NO. Mwatate and Taveta which resulted from the subdivision of the former Taita Taveta District. crossing through three (3) new created districts namely Voi.O. Excavation of the foundations of the tower pads. Mounting of the towers on the pads and Stringing of the conductors over the entire distance. (NEMA) has received an environmental impact assessment study report for the proposed Voi-Taveta 132 kV Single Circuit Transmission Line. Kapiti Road. 8386 THE ENVIRONMENTAL MANAGEMENT AND CO-ORDINATION ACT (No. Coast Province. Box 67839-00200. Nairobi . P. Rehabilitation of any disturbed areas. 8 of 1999) THE NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY ENVIRONMENTAL IMPACT ASSESSMENT STUDY REPORT FOR THE PROPOSED VOI-TAVETA 132Kv SINGLE CIRCUIT TRANSMISSION LINE INVITATION OF PUBLIC COMMENTS PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations. The full report of the proposed project is available for inspection during working hours at: (a) Director-General the National Environment Management Authority (NEMA). Construction of tower pad foundation.

N. Coast Province. Community. to assist the Authority in the approval process of the project. (e) District Environment Officer. For Director-General.F. NEMA.I.(b) Permanent Secretary. Ministry of Environment and Mineral Resources. Mwatate District. National Environment Management Authority .H. Taveta District The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General. Box 30521. (f) District Environment Officer. WILKISTER MAGANGI. P. (d) District Environment Officer. Voi District. (c) Provincial Director of Environment.O. Nairobi.

off Mombasa Road. The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General. Elgon Forest Reserve which has been considered by the Government for the purposes of resettlement among other tasks. 8387 THE ENVIRONMENTAL MANAGEMENT AND CO-ORDINATION ACT (No.H. Nairobi. The proposed project is located in Chepyuk Location. The full report of the proposed project is available for inspection during working hours at: (a) Director-General the National Environment Management Authority (NEMA). Community. Elgon District. Ministry of Environment and Mineral Resources. Box 67839-00200. P.750 hectares were authrorized by the Government to comprise Chepyuk Settlement Scheme Phase I. A total of 7. to assist the Authority in the approval process of the project. NEMA.O. Mt. and partly in Kabura Sublocations while Phase III lies in Emi and Chepyuk. (d) District Environment Officer. Box 30521. Nairobi (b) Permanent Secretary. the National Environment Management Authority. (c) Provincial Director of Environment.I. The project anticipates the impacts and mitigation measures set out in the gazette.GAZETTE NOTICE NO. 8 of 1999) THE NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY ENVIRONMENTAL IMPACT ASSESSMENT STUDY REPORT FOR THE PROPOSED RESETTLEMENT PROGRAMME IN CHEPYUK PHASE II AND III SETTLEMENT SCHEME IN MOUNT ELGON DISTRICT INVITATION OF PUBLIC COMMENTS PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations. The project is for the proposed degazettement and excision of Chepyuk Phase II and IIII Settlement Scheme from Mt. . N. (NEMA) has received an environmental impact assessment study report for the proposed resettlement programme. Western Province. Western Province. Kaimugul and partly Kabura SubLocations.F.O. Kopsiro Division in Mt. Kapiti Road. Elgon District. II and III. P. Phase II lies in Korongotuny.

National Environment Management Authority . LANGWEN.M. For Director-General.B.

8388 THE ENVIRONMENTAL MANAGEMENT AND CO-ORDINATION ACT (No. Kapiti Road. off Mombasa Road. Ministry of Environment and Mineral Resources.H. Gift shop. 8 of 1999) THE NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY ENVIRONMENTAL IMPACT ASSESSMENT STUDY REPORT FOR THE PROPOSED LAKE VICTORIA ECOLODGE IN KISUMU IMPALA SACTUARY. N. “Obama” Dhow The proposed project is located within the Kisumu Impala Sanctuary in Nyanza Province The project anticipates the impacts and mitigation measures set out in the gazette. KENYA INVITATION OF PUBLIC COMMENTS PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations. (d) District Environment Officer. (NEMA) has received an environmental impact assessment study report for the proposed Lake Victoria Eco lodge. Box 30521. Visitor information and interpretation Centre. Nyanza Province. Community.O. Nairobi. catering services and act as a base for various tourist activities within the Sanctuary and will include: • • • • • Reception and lounge. the National Environment Management Authority. P. The full report of the proposed project is available for inspection during working hours at: (a) Director-General the National Environment Management Authority (NEMA). P.GAZETTE NOTICE NO. Nairobi (b) Permanent Secretary. Restaurant and bar.I. (c) Provincial Director of Environment.O. . Box 67839-00200. Kisumu District. The proposed project will be 24-bed high-end luxury eco-lodge at the site to offer tourist accommodation.F.

The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General. LANGEWEN For Director-General. NEMA.M. B. to assist the Authority in the approval process of the project. National Environment Management Authority .

SUPPLEMENT NO. . 2010 105– The food. 5-9) Orders. 2010. 44 Bills. 2020 106– The Traffic Act – Exemption 107– The National Hospital Insurance Fund (Standard and Special Contributions) (Amendment) Regulations. 2010 104–The Privileges (New Partnership for African Red Cross and Red Crescent Societies) Order. Drugs and Chemical Substances ( Food Labelling. Additives and Standards) (Amendment) Regulations. 2) Bill. 2010 The tea (Amendment) (No. 2010 108–The national Hospital Insurance Fund (Voluntary Contributions) (Amendment)Regulations. 43 Legislative Supplement 99–103–The Registered Land (Application) (Nos. 2010 SUPPLEMENT NO.

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