Summary

The applicant filed a Notice of Motion application dated 11th September 2023 pursuant to the provisions of Articles 27(1), 47(1), 159(1) & (2), 165(6) & (7) of the Constitution of Kenya, Section 14(3) of the Arbitration Act, 1995, Order 42 Rule 6 of the Civil Procedure Rules, 2010, Sections 1, 1A, 3 & 3A of the Civil Procedure Act and all other enabling provisions of the law.

The applicant seeks an order for stay of the ongoing arbitral proceedings in NCIA DIS/ARB/16/22 (Lu Minghui v Orient Enterprises Limited), and pursuant to Section 14(8) of the Arbitration Act, 1995, the applicant seeks an order that no arbitral award shall take effect until this application is determined and that any such award be rendered void if the application succeeds. The applicant also seeks an order for the removal of the Arbitrator, Hon. Mr. Bwalya Lumbwe, from the Arbitral Tribunal and an order allowing the adoption of its statement of defence, documents, and witness statements in the arbitral proceedings.

The application is premised on the grounds on the face of the Motion, and it is supported by an affidavit sworn on the same day by Mr. James Mahinda Wairoto, an Advocate of the High Court of Kenya and learned Counsel for the applicant. Mr. Wairoto outlined the circumstances giving rise to the request for removal of the Arbitrator and stay of the arbitral proceedings. He explained that the parties consented to Order for Directions No. 1 issued on 26th June 2023, which set strict timelines for the filing of pleadings. That although the respondent was required to file its statement of claim by 7th July 2023, it instead submitted documents directly to the Arbitrator without copying the Tribunal, and only forwarded the statement of claim to the Case Manager three (3) days after the deadline, without seeking leave for late filing. He contended that the applicant was neither invited to comment on this non-compliance, nor was the respondent directed to seek an extension of time.

He deposed that converse to the foregoing, when the applicant filed its statement of defence on 3rd August 2023, three (3) days out of time, the Arbitrator, through Procedural Decision No. 1 dated 8th August 2023, rejected it. He stated that being aggrieved, the applicant promptly applied for the removal of the Arbitrator on grounds of bias and unfair treatment, but the Tribunal declined the request on 25th August 2023, advising the applicant to seek an extension of time under Rule 25(1) (b) of the NCIA Arbitration Rules. That subsequently, the applicant sought extension of time on 28th August 2023, but this too was rejected in Procedural Decision No. 4 dated 7th September 2023. Mr. Wairoto contended that unless the Court stays the arbitral proceedings, the applicant will be denied a fair opportunity to defend the claim, as the Arbitrator has acted unfairly, unreasonably, and without impartiality by barring the applicant's documents.

...