Wakilii

Clemens Ferhr v Kanyeihamba (CAD ARB 9 of 2006)

Tribunal · [2007] UGCADER 2 · 2007 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for compulsory appointment of an arbitrator under Sections 11 and 68 of the Arbitration and Conciliation Act
Decision
Sole arbitrator appointed to resolve the dispute arising from the lease agreement

Observed later treatment

Cited — treatment unverified cited in 1 (treatment unverified) Sequitur — Uganda’s citator · Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

No adverse treatment recorded Cited 1 time with no adverse treatment recorded; not yet tested on the merits. Derived from citing cases in the Wakilii corpus — a deterministic signal, not legal advice.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

CADER has jurisdiction under Section 11(4)(c) of the Arbitration and Conciliation Act to appoint an arbitrator where a third party designated by the parties' agreement fails to perform that function. The President of the Uganda Law Society, by pending the appointment indefinitely rather than appointing or declining to appoint, failed to perform his function. The existence of parallel High Court proceedings does not bar arbitral proceedings under Sections 5(2), 9, and 16(8) of the Act. The respondent's 481-day silence in response to repeated requests for arbitrator nomination frustrated the mutual obligation to constitute an arbitral tribunal. Application granted; sole arbitrator appointed.

Outcome

Sole arbitrator appointed to resolve the dispute arising from the lease agreement

Facts

The parties executed a lease agreement on 1 August 2006 containing an arbitration clause (Clause 6) providing for disputes to be referred to an arbitrator agreed between the parties, or failing agreement within 14 days, to be appointed by the President of the Uganda Law Society. A dispute arose. Between 21 July 2005 and 5 December 2005, the applicant sent three letters to the respondent requesting nomination of an arbitrator; the respondent never replied. On 18 September 2006, the applicant requested the President of the Uganda Law Society to appoint an arbitrator, imposing a 4-day deadline. The respondent's lawyers objected on 4 October 2006, citing a pending High Court civil suit (HCCS No. 76 of 2006) filed by the applicant on 9 March 2006. On 10 October 2006, the President of the Uganda Law Society replied that he would pend the appointment pending clarification of the court case. On 14 November 2006, the applicant filed this application with CADER for compulsory appointment of an arbitrator.

Issues

  1. Whether CADER has jurisdiction to appoint an arbitrator when the parties' agreed procedure designates the President of the Uganda Law Society as the appointing authority.
  2. Whether the applicant waived his right to arbitration by filing a civil suit in the High Court.
  3. Whether the President of the Uganda Law Society failed to perform his function under the arbitration clause by pending the appointment.
  4. Whether the respondent's failure to respond to requests for nomination of an arbitrator over 481 days constitutes frustration of the mutual obligation to arbitrate.

Orders

  • Application granted.
  • Mr. Samuel Wako Wambuzi (retired Chief Justice Emeritus) appointed as Sole Arbitrator.
  • In the event Mr. Wako Wambuzi declines, Mr. Herbert J. Ntagoba (retired Principal Judge Emeritus) is nominated as alternate arbitrator.
  • In the event both decline, Mr. Seth Manyindo (retired Deputy Chief Justice Emeritus) is nominated as second alternate arbitrator.
  • The appointed arbitrator shall notify CADER when accepting or declining the nomination.
  • Costs of the application awarded to the applicant, to be borne by the respondent.

Rules and key headnotes

Arbitration & ADR — Appointment of Arbitrators — Jurisdiction of CADER — Third Party Failure to Perform Function
Where an arbitration agreement designates a third party (including an institution) to appoint an arbitrator and that third party fails to perform the function entrusted to it, CADER has jurisdiction under Section 11(4)(c) of the Arbitration and Conciliation Act to appoint an arbitrator upon application by either party, notwithstanding that the agreement does not expressly name CADER as the appointing authority.
Arbitration & ADR — Arbitration Agreement — Mutual Obligation — Duty to Participate in Appointment
An arbitration clause imposes a mutual obligation upon both parties to participate in the constitution of an arbitral tribunal. A party's prolonged failure to respond to repeated requests for nomination or agreement on an arbitrator constitutes frustration of that mutual obligation and denial of the other party's right to invoke arbitration.
Arbitration & ADR — Concurrent Proceedings — Court and Arbitral Tribunal — No Conflation
Under Sections 5(2), 9, and 16(8) of the Arbitration and Conciliation Act, arbitral proceedings may be commenced or continued notwithstanding pending court proceedings on the same subject matter. The existence of a court case does not bar an application for appointment of an arbitrator, as the arbitral tribunal has competence under Section 16 to rule on its own jurisdiction.
Arbitration & ADR — Third Party Appointing Authority — Duty to Appoint or Decline
A third party designated by an arbitration agreement to appoint an arbitrator has only two permissible courses of action: to appoint an arbitrator or to decline to appoint. The third party may not keep the parties in limbo by indefinitely pending the appointment pending further clarification or agreement between the parties.
Arbitration & ADR — Appointing Authority — Definition — Distinction from Third Party
Under Section 2(1)(a) and Section 11 of the Arbitration and Conciliation Act, an 'appointing authority' means an institution, body, or person appointed by the Minister (including CADER under Section 68(a)) to perform the functions of appointing arbitrators. A person deriving power to appoint from a contractual clause is a 'third party including an institution' within Section 11(4)(c), not an 'appointing authority'. Parties cannot by contract exclude CADER's statutory jurisdiction under Section 11.
Administrative Law — Statutory Interpretation — Substantive Justice — Technicalities
Under Article 126(2)(e) of the Constitution, substantive justice shall be administered without undue regard to technicalities. An omission to cite a specific subsection in the heading of an application does not bar reliance on that subsection where the facts supporting its application are sufficiently pleaded in the affidavit evidence.

Legislation cited (24)

Cases cited (2)

  • Heyman v Darwins [1942] All ER 337
  • B.M. Steels Ltd v Kilembe Mines (CAD ARB 10 of 2004)

Cases citing this judgment (1)

How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.

Full judgment

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

Clemens Ferhr v Kanyeihamba (CAD ARB 9 of 2006) [2007] UGCADER 2 (4 January 2007)
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.