Wakilii

Betty Nabitosi (Administrator Pendente Lite of Estate Of Late Prof. George Kanyeihamba) v Dr. Clemens Fehr (Miscellaneous Application No. 464 of 2025)

High Court · [2026] UGCOMMC 52 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside arbitral award arising from Arbitration Cause No. 0020 of 2024
Decision
Application to set aside arbitral award dismissed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Application to set aside arbitral award dismissed. The court held that it cannot review the merits of an arbitral award; arbitration was not time barred as it commenced in 2005 when notice requiring appointment of arbitrator was served; the appointment of the arbitrator by the President of Uganda Law Society was valid under Clause 6 of the lease agreement and Section 11 of the Arbitration and Conciliation Act; the deceased was properly served with notice of the arbitral proceedings and elected not to participate.

Outcome

Application to set aside arbitral award dismissed

Facts

In 2001, the late Prof. George Kanyeihamba leased 20 acres of his land in Bwebajja to Dr. Clemens Fehr for 25 years to establish a horticulture farm. The Deceased believed the Respondent breached the lease by occupying more than 20 acres and evicted him in 2005. The lease agreement contained an arbitration clause. The Respondent requested arbitration from 2005, but the Deceased frustrated the process by rejecting proposed arbitrators over many years. In 2021, the President of Uganda Law Society appointed Mr. Aime Mbarushimana as arbitrator pursuant to Clause 6 of the lease agreement. Despite personal service of invitations to preliminary meetings, the Deceased refused to participate. The arbitrator proceeded ex parte and delivered an award in 2023. Following the Deceased's death, Betty Nabitosi was appointed administrator pendente lite and brought this application to set aside the award on grounds of time bar, invalidity of the arbitrator's appointment, lack of notice, and excessive award.

Issues

  1. Whether the Court can inquire into the complaints on the merits of the arbitral award.
  2. Whether the arbitration proceedings were time barred.
  3. Whether the appointment of Mr. Aime Mbarushimana as the arbitrator of the dispute was null and void.
  4. Whether the Deceased was given proper notice of the appointment of Mr. Aime Mbarushimana as the arbitrator of the dispute and of the arbitral proceedings.
  5. What reliefs are available to the parties.

Orders

  • The application is dismissed.
  • Costs of the application are awarded to the Respondent.

Rules and key headnotes

Arbitration — Court Review of Arbitral Awards — Scope of Court's Jurisdiction
A court adjudicating upon the validity of an arbitral award does not function as an appellate court. The court merely decides upon the legality of the award and should not concern itself with the merits of the determination. If the arbitrator has acted within his or her jurisdiction, his legal and factual findings are final, even though the court might have decided the merits differently. An arbitrator's erroneous appraisal of evidence is not a ground on which the court can set aside an arbitral award under Section 34 of the Arbitration and Conciliation Act.
Arbitration — Commencement of Arbitration — Limitation Period
Under Section 26(3) of the Limitation Act, arbitration is deemed to be commenced when one party serves on the other party a notice requiring him or her to appoint an arbitrator or to agree to the appointment of an arbitrator. Arbitration does not commence when the appointment or approval of the arbitrator is actually made, but when the request for such appointment or approval is served. Where a party frustrates arbitration by rejecting proposed arbitrators over many years, it would be absurd for that party's conduct to cause the claim to become time barred.
Arbitration — Appointment of Arbitrator — Third Party Appointing Authority
Section 11(4)(c) of the Arbitration and Conciliation Act anticipates that parties may have entrusted the duty of appointing an arbitrator in case of their failure to agree on one to a third party, including an institution. If parties have agreed on a third party to resolve the question of appointment of an arbitrator once they fail to agree on one, a party seeking to start the arbitration is entitled to ask that third party to make the appointment before applying to the appointing authority envisaged under Section 2(a) of the Act. An appointment made pursuant to such an agreed procedure is valid and binding.
Arbitration — Notice of Proceedings — Effective Service
The desired and intended result of service is to make the party served aware of the matter to which the service relates so that he has the opportunity to take the necessary actions to protect his or her interests. Service which achieves that desired and intended result is deemed effective service, and it is best achieved when the intended recipient is served personally. Where a party is personally served with invitations to attend arbitral proceedings but elects not to participate, that party remains unprotected from the consequences of that election.
Arbitration — Ex Parte Proceedings — Discretion of Arbitrator
Under Section 25 of the Arbitration and Conciliation Act, an arbitrator has discretion to proceed ex parte and to hear and decide a dispute relying only on the evidence of the party in attendance where the other party, despite proper service and multiple adjournments to accommodate him, elects not to participate in the arbitration proceedings.

Legislation cited (18)

Cases cited (2)

  • Roko Construction Ltd v Kobusingye Janet (High Court Miscellaneous Cause No. 0022 of 2021)
  • Geoffrey Gatete & Anor v William Kyobe (Supreme Court Civil Appeal No. 7 of 2005)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Betty Nabitosi (Administrator Pendente Lite of Estate Of Late Prof. George Kanyeihamba) v Dr. Clemens Fehr (Miscellaneous Application No. 464 of 2025) [2026] UGCommC 52 (20 Februar
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.