KLR WEEKLY e-NEWSLETTER
 

| Issue 115| Newsletter Archive | Friday 16th July 2010 |

 
   
 
 
CASE OF THE WEEK
 

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.

It was the defendant’s case that even if there was a dispute it was one of law, 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.  In the defendant’s view that it could not have obstructed the arbitral proceedings merely by pointing out that there was no dispute.
The issues for determination before the court were; 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. 

Justice Koome having analyzed the submissions by both parties noted that the Kenyan Arbitration Act varied with the English Act, and that had the plaintiffs followed the English Act, especially the provisions of sections 17, this application would not have been necessary, 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, and one party refuses or fails to agree to appoint an arbitrator within a specified time, the other party may appoint his arbitrator as a sole arbitrator who can proceed with the arbitration.

The Court concurred with the defendant that the English Arbitration Act, 1996 was applicable to this case as per the agreements, 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 further noted that if it followed the provisions cited in the application, it would lead to an erroneous decision because under the Kenyan law, the decision of the High Court was final. 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.

On the question of issuance of conservatory orders, under the Arbitration Act, the court held that these proceedings were not governed by the Kenyan Arbitration Act, the agreement had a termination clause and notice given to the plaintiffs was according to the agreement, hence, there was no prima facie case to warrant court to issue the conservatory orders.  The application was thus disallowed with cost to the defendant

Download Full Text of This Judicial Opinion

 
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SELECTED NOTICES FROM THE KENYA GAZETTE
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Vol CXII – No .69 Dated July 16,2010

GAZETTE NOTICE NO. 8068
THE RATING ACT (Cap. 267)
THE MUNICIPAL COUNCIL OF MERU

APPOINTMENT OF VALUER

IN EXERCISE of the powers conferred by section 7 of the Rating Act, the Deputy Prime Minister and Minister for Local Government, approves the appointment of –

DANIEL M. KIBUCHI

As valuer to prepare the Draft Valuation Roll for Municipal Council of Meru.

Dated the 8th July, 2010.

MUSALIA MUDAVADI,
Deputy Prime Minister and
Minister for Local Government

GAZETTE NOTICE NO. 8069
THE RATING ACT (Cap. 267)
THE MUNCIPAL COUNCIL OF MERU

SITE VALUE RATE

IN EXERCISE of the powers conferred by section 4 (10) (b) of the Rating Act, the Deputy Prime Minister and Minister for Local Government, approves adoption by Municipal Council of Meru of undeveloped “site value” for purposes of levying rates.

Dated the 8th July, 2010.

MUSALIA MUDAVADI,
Deputy Prime Minister and
Minister for Local Government

GAZETTE NOTICE NO. 8070
THE VALUATION FOR RATING ACT (Cap. 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. No. SP.FSGP/29/2010 as follows:

“That the time of valuation for the Municipal Council of Meru’s Valuation Roll shall be 31st December, 2009”.

Dated the 8th July, 2010.

MUSALIA MUDAVADI,
Deputy Prime Minister and
 Minister for Local Government  

GAZETTE NOTICE NO. 8071
THE VALUATION FOR RATING ACT (Cap. 266)
THE MUNICIPAL COUNCIL OF MERU

DECLARATION

IN EXERCISE of the powers conferred by section 6 of the Valuation for Rating Act, 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, as required by paragraphs (c) and (e) respectively of this section”.

Dated the 8th July, 2010.

MUSALIA MUDAVADI,
Deputy Prime Minister and
Minister for Local Government.

GAZETTE NOTICE NO. 8072
THE NATIONAL MUSEUMS AND HERITAGE ACT (No. 6 of 2006)
APPOINTMENT

IN EXERCISE of the powers conferred by section 6 of the National Museums and Heritage Act, 2006, the Minister for State for National Heritage and Culture appoints-

SWALEH SAUDA M. (DR.)

to be a member of the National Museums of Kenya Board, for a period of three (3) years, with effect from 2nd July, 2010.

Dated the 5th July, 2010.

WILLIAM OLE NTIMAMA,
Minister of State for National Heritage and Culture

GAZETTE NOTICE NO. 8073
THE NATIONAL MUSEUMS AND HERITAGE ACT (No. 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, the Minister of State for National Heritage and Culture in consultation with the National Museums, 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.

Any objection to the declaration shall be lodged with the Minister within two months from the date of publication of this notice.

SCHEDULE
PUMWANI COMMUNITY MEMORIAL HALL

All that building known as the Pumwani Community Memorial Hall, on L.R. No. 209/2378/9 measuring approximately one-acre, situated within Pumwani Majengo Location, in Nairobi North District, Nairobi Province.

Dated the 5th July, 2010.

WILLIAM OLE NTIMAMA,
Minister of State for National Heritage and Culture

GAZETTE NOTICE NO. 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, the Minister for Agriculture appoints-

JUSTINE N. SITTI (MRS)

to be a member of the Board of the Kenya Seed Company, for a period of three (3) years, with effect from 1st July, 2010.

Dated the 30th June, 2010.

S.J. KOSGEI
Minister for Agriculture

GAZETTE NOTICE NO. 8075
THE STATE CORPORATIONS ACT (Cap. 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, with effect from 1st July, 2010.

Dated the 30th June, 2010.

S.J. KOSGEI
Minister for Agriculture

GAZETTE NOTICE NO. 8076
THE SCIENCE AND TECHNOLOGY ACT (Cap. 250)

APPOINTMENT

IN EXERCISE of the powers conferred by section 15 (1) (f) of the Science and Technology Act, The minister for Agriculture appoints-

KARWITH KIUGU (PROF.)

to be a member of the Board of the Management of Kenya Agricultural Research Institute, for a period of three (3) years, with effect from 1st July, 2010.

Dated the 30th June, 2010.

S.J. KOSGEI
Minister for Agriculture 

GAZETTE NOTICE NO. 8077
THE WILDLIFE (CONSERVATION AND MANAGEMENT) ACT (Cap. 376)

DECLARATION OF A WILDLIFE SACTUARY

IN EXERCISE of the powers conferred by section 19 (1) of the Wildlife (Conservation and Management) Act, the Minister for Forestry and Wildlife declares the area specified in the schedule to be a wildlife sanctuary.

SCHEDULE

LAKE ELEMENTAITA WILDLIFE SANCTUARY

All that area of land measuring approximately 2533.9 hectares situated within south-east of Nakuru Town, Nakuru District.  Rift Valley Province, boundary plan No. 216/67, which is signed, sealed and deposited at the Survey Records Office, Survey of Kenya, Nairobi, and a copy of which may be inspected at the office of the Director, Kenya Wildlife Service, Nairobi.

Dated 6th July, 2010.

N.M. WEKESA
Minister for Forestry and Wildlife.

GAZETTE NOTICE NO. 8078
THE LAW REFORM COMMISSION ACT (Cap. 3)

APPOINTMENT

IN EXERCISE of the powers conferred by section 2 (6) of the Law Reform Commission Act, the Attorney-General appoints-

JOASH ODHIAMBO DACHE

To be secretary to the Kenya Law Reform Commission.

Dated the 9th July, 2010.

S.A. WAKO,
Attorney-General

GAZETTE NOTICE NO. 8079
THE PUBLIC PROCUREMENT AND DISPOSAL ACT (No. 3 of 2005)

APPOINTMENT

IN EXERCISE of the powers conferred by section 26 (4) of the Public Procurement and Disposal Act, 2005 and second schedule of the Public Procurement and Disposal Regulations, 2006, the Permanent Secretary, Ministry of Justice, National Cohesion and Constitutional affairs appoints –

AMB. DAVID M. MUTEMI

to be the Chairman of the Ministerial Tender Committee, with immediate effect for the financial year 2010/2011.

Dated the 9th July, 2010.

A.C. MOHAMED,
Permanent Secretary. 

GAZETTE NOTICE NO. 8385
THE PHYSICAL PLANNING ACT
(No. 6 of 1996)

COMPLETION OF PART DEVELOPMENT PLAN

(PDP 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 15th May, 2010.
The part development plan relates to land situated within Minjla Town, Tana Delta District.

Copies of the part development plan have been deposited for public inspection at the offices of the District physical planning Officer, Tana Delta, District Commissioner, Tana Delta, County Clerk, County Council of Tana River.

The copies so deposited are available for inspection free of charge by all persons interested at offices of the District Physical Planning Officer, Tana Delta, District Commissioner, Tana Delta, County Clerk, County Council of  Tana River, between the hours of 8.00 a.m. to 5.00 p.m. Monday to Friday.

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, P.O. Box 201, Hola, 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.

Dated the 15th June, 2010.

J.M. MUTINDA,
For Director of Physical Planning

GAZETTE NOTICE NO. 8386
THE ENVIRONMENTAL MANAGEMENT AND
CO-ORDINATION ACT (No. 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 National Environment Management Authority, (NEMA) has received an environmental impact assessment study report for the proposed Voi-Taveta 132 kV Single Circuit Transmission Line.

The construction of the transmission line will involve the following activities:

  1. Valuation and compensation of affected people’s property and resettlement
  2. Land acquisition to accommodate line’s 30 m wide Right of Way (ROW) along the 110 km route;
  3. Excavation of the foundations of the tower pads;
  4. Construction of tower pad foundation;
  5. Mounting of the towers on the pads and
  6. Stringing of the conductors over the entire distance;
  7. Rehabilitation of any disturbed areas;

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. crossing through three (3) new created districts namely Voi, Mwatate and Taveta which resulted from the subdivision of the former Taita Taveta District, Coast Province.

The project anticipates the impacts and mitigation measures set out in the gazette.

The full report of the proposed project is available for inspection during working hours at:

  1. Director-General the National Environment Management Authority (NEMA), Kapiti Road, off Mombasa Road, P.O. Box 67839-00200, Nairobi   
  2. Permanent Secretary, Ministry of Environment and Mineral Resources, N.H.I.F. Community, P.O. Box 30521, Nairobi.
  3. Provincial Director of Environment, Coast  Province.
  4. District Environment Officer, Voi District.
  5. District Environment Officer, Mwatate District.
  6. District Environment Officer, 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, NEMA, to assist the Authority in the approval process of the project.

WILKISTER MAGANGI,
For Director-General,
        National Environment  Management Authority

GAZETTE NOTICE NO. 8387
THE ENVIRONMENTAL MANAGEMENT AND
CO-ORDINATION ACT (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 National Environment Management Authority, (NEMA) has received an environmental impact assessment study report for the proposed resettlement programme.

The project is for the proposed degazettement and excision of Chepyuk Phase II and IIII Settlement Scheme from Mt. Elgon Forest Reserve which has been considered by the Government for the purposes of resettlement among other tasks. A total of 7,750 hectares were authrorized by the Government to comprise Chepyuk Settlement Scheme Phase I, II and III.

The proposed project is located in Chepyuk Location, Kopsiro Division in Mt. Elgon District, Western Province. Phase II lies in Korongotuny, and partly in Kabura Sub-locations while Phase III lies in Emi and Chepyuk, Kaimugul and partly Kabura Sub-Locations.

The project anticipates the impacts and mitigation measures set out in the gazette.

The full report of the proposed project is available for inspection during working hours at:

  1. Director-General the National Environment Management Authority (NEMA), Kapiti Road, off Mombasa Road, P.O. Box 67839-00200, Nairobi    
  2. Permanent Secretary, Ministry of Environment and Mineral Resources, N.H.I.F. Community, P.O. Box 30521, Nairobi.
  3. Provincial Director of Environment, Western Province.
  4. District Environment Officer, Mt. Elgon 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, NEMA, to assist the Authority in the approval process of the project.

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

GAZETTE NOTICE NO. 8388
THE ENVIRONMENTAL MANAGEMENT AND
CO-ORDINATION ACT (No. 8 of 1999)
THE NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY

ENVIRONMENTAL IMPACT ASSESSMENT STUDY

REPORT FOR THE PROPOSED LAKE VICTORIA ECOLODGE IN KISUMU IMPALA SACTUARY, KENYA

INVITATION OF PUBLIC COMMENTS

PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environment Management Authority, (NEMA) has received an environmental impact assessment study report for the proposed Lake Victoria Eco lodge.

The proposed project will be 24-bed high-end luxury eco-lodge at the site to offer tourist accommodation, catering services and act as a base for various tourist activities within the Sanctuary and will include:

  1. Reception and lounge,
  2. Restaurant and bar,
  3. Visitor information and interpretation Centre,
  4. Gift shop.
  5. “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.

The full report of the proposed project is available for inspection during working hours at:

  1. Director-General the National Environment Management Authority (NEMA), Kapiti Road, off Mombasa Road, P.O. Box 67839-00200, Nairobi   
  2. Permanent Secretary, Ministry of Environment and Mineral Resources, N.H.I.F. Community, P.O. Box 30521, Nairobi.
  3. Provincial Director of Environment, Nyanza Province.
  4. District Environment Officer, Kisumu 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, NEMA, to assist the Authority in the approval process of the project.

B.M. LANGEWEN
For Director-General,
        National Environment  Management Authority

SUPPLEMENT NO. 43
Legislative Supplement

99–103–The Registered Land (Application) (Nos. 5-9) Orders, 2010
104–The Privileges (New Partnership for African Red Cross and Red Crescent Societies) Order, 2010
105– The food, Drugs and Chemical Substances ( Food Labelling, Additives and
          Standards) (Amendment) Regulations, 2020
106– The Traffic Act – Exemption
107– The National Hospital Insurance Fund (Standard and Special Contributions)
(Amendment) Regulations, 2010
108–The national Hospital Insurance Fund (Voluntary Contributions)
        (Amendment)Regulations, 2010

SUPPLEMENT NO. 44
Bills, 2010

The tea (Amendment) (No. 2) Bill, 2010.

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