Nancy Wangui Njuguna & another v Nancy Njeri Gitau & 2 others [2020] eKLR Case Summary

Court
High Court at Nairobi (Milimani Law Courts)
Category
Civil
Judge(s)
Justice J. Kamau
Judgment Date
October 26, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3

Case Brief

1. Case Information:
- Name of the Case: Nancy Wangui Njuguna & another v Nancy Njeri Gitau & 2 others [2020] eKLR

- Case Number: Misc Civil Application No 618 of 2019
- Court: High Court of Kenya at Nairobi, Milimani Law Courts
- Date Delivered: October 26, 2020
- Category of Law: Civil
- Judge(s): Justice J. Kamau
- Country: Kenya

2. Questions Presented:
The court was tasked with resolving several legal issues, including:
- Whether the mandate of the 3rd Respondent (the arbitrator) should be terminated.
- Whether the second applicant should be struck out from the proceedings.
- Whether the application was res judicata.
- Whether there was a conflict of interest regarding the 3rd Respondent.

3. Facts of the Case:
The applicants, Nancy Wangui Njuguna and James Njuguna Kagwima (trading as Glorious Primary School), entered into a Memorandum of Understanding with the 1st Respondent, Nancy Njeri Gitau, concerning the operation of a school. A dispute arose regarding the management of the school, leading to the filing of several court cases to restrain the 1st Respondent from making decisions about the school. The parties agreed to refer the dispute to arbitration as per the Memorandum of Understanding. However, the arbitration process remained unresolved for years, prompting the applicants to seek the court's intervention to terminate the 3rd Respondent's mandate and appoint a new arbitrator.

4. Procedural History:
The case progressed through various stages, beginning with the initial filing of CMCC No 13299 of 2004, which was later discontinued by the applicants. They subsequently filed HCCC No 766 of 2006, which was stayed by the High Court, directing the parties back to arbitration. The High Court's decision was upheld by the Court of Appeal. The applicants later filed a Notice of Motion seeking to terminate the 3rd Respondent's mandate due to delays in arbitration. The 1st and 2nd Respondents opposed this application, arguing that the applicants had frustrated the arbitration process.

5. Analysis:
- Rules: The court considered relevant provisions of the Arbitration Act, particularly Sections 14 and 15 regarding the termination of an arbitrator's mandate. The court also referenced the Civil Procedure Act concerning res judicata and the striking out of parties from proceedings.
- Case Law: The court cited previous cases such as *Josephat Murage Miano & Another vs Samuel Mwangi Miano Miano & Another* and *Nyanga’u vs Omosa Nyakwara*, which addressed the removal of an arbitrator due to misconduct and conflicts of interest. These cases were relevant in evaluating the applicants' claims against the 3rd Respondent.
- Application: The court found that the 3rd Respondent had failed to conduct the arbitration proceedings effectively and had not responded to the applicants' concerns regarding his ability to act. The court determined that the mandate of the 3rd Respondent was terminated due to his inability to perform his duties, as provided under Section 15(1)(a) of the Arbitration Act.

6. Conclusion:
The court ruled in favor of the applicants, allowing their motion to terminate the 3rd Respondent's mandate and directing the parties to appoint a new arbitrator. The court emphasized the need for the dispute to be resolved expeditiously and noted that the previous arbitration agreement lacked a clear default clause for appointing a new arbitrator.

7. Dissent:
There were no dissenting opinions mentioned in the ruling.

8. Summary:
The High Court of Kenya ruled in favor of the applicants, allowing their application to terminate the mandate of the 3rd Respondent and directing the appointment of a new arbitrator. This decision highlighted the importance of timely resolution in arbitration proceedings and addressed issues of conflict of interest and ineffective arbitration management. The ruling reinforces the procedural integrity of arbitration agreements and the courts' role in ensuring fair dispute resolution.

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