Wakilii

Kibo Media Limited v Nile Breweries Limited [2026] UGCOMMC 325

High Court · 2026 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application by notice of motion for a stay of a pending civil suit and reference of the dispute to arbitration, and for appointment of an arbitrator
Decision
Contractual claims and counterclaims under the arbitration-bearing agreements stayed, struck out and referred to CADER Arbitration Reference No. 7 of 2025; residual claims and parties retained in the High Court but stayed on a case-management basis pending the arbitration

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court partly granted the application. A dispute existed; claims sounding in tort, fraud, deceit and conspiracy between commercial parties arising from a contractual relationship are arbitrable, and scope is for the tribunal under the kompetenz-kompetenz principle in section 16. Filing a written statement of defence and counterclaim is not a waiver of the right to arbitrate, since section 5(1) expressly contemplates an application after a defence is filed. Non-signatory defendants could not be compelled to arbitrate, and section 98 of the Civil Procedure Act cannot be used to manufacture consent. Contractual claims and counterclaims under the arbitration-bearing agreements were stayed, struck out and referred to arbitration; residual claims remained but were stayed on a case-management basis.

Outcome

Contractual claims and counterclaims under the arbitration-bearing agreements stayed, struck out and referred to CADER Arbitration Reference No. 7 of 2025; residual claims and parties retained in the High Court but stayed on a case-management basis pending the arbitration

Facts

The Applicant provided marketing and events services to the Respondent between 2021 and 2024 under five successive written agreements. After a demand letter of 14 February 2025 went unanswered, the Applicant commenced CADER Arbitration Reference No. 7 of 2025 and proposed three arbitrators. The Respondent invoked clauses requiring mediation as a condition precedent; the parties jointly appointed and funded a mediator, exchanged case summaries and held a mediation session on 6 May 2025 at which a procedural order for reconciliation of accounts was made. The reconciliation did not occur and, by email of 24 June 2025, the Respondent withdrew from mediation and filed HCCS No. 738 of 2025 against the Applicant, its managing director and two former employees of the Respondent, pleading eight causes of action including unjust enrichment, deceit, conspiracy and causing financial loss by fraud, and claiming special damages of UGX 8,928,452,225. The Applicant filed a defence and a counterclaim for UGX 12,761,994,951 on sixty-four unpaid invoices, and then applied for a stay of the suit and appointment of an arbitrator. Two of the five agreements admittedly contained arbitration clauses, one admittedly did not, and two were disputed.

Issues

  1. Whether a dispute exists between the parties capable of reference to arbitration under section 5(1) of the Arbitration and Conciliation Act.
  2. Whether claims pleaded in tort, fraud and equity are arbitrable.
  3. Whether valid and enforceable arbitration agreements exist across the five contracts relied upon by the parties.
  4. Whether the pleaded causes of action fall within the scope of the arbitration agreements, and who decides scope.
  5. Whether the 2nd, 3rd and 4th Defendants, being non-signatories, can be bound by the arbitration agreements.
  6. Whether the Applicant waived its right to arbitrate by filing a written statement of defence and counterclaim in the main suit.
  7. Whether the court may, under section 98 of the Civil Procedure Act, refer residual claims and non-consenting parties to arbitration, or instead grant a case-management stay.
  8. Whether an alternative appointing authority should be designated in place of CADER following the Arbitration and Conciliation (Amendment) Act, 2024.

Orders

  • The Applicant's application partially succeeds.
  • The Respondent's claim against the Applicant in HCCS No. 738 of 2025, in so far as it arises out of Annexures C1, C3, C4 and C5, is stayed and referred to arbitration and to that extent determines and is struck out.
  • The Applicant's Counterclaim in HCCS No. 738 of 2025, in so far as it relates to Annexures C1, C3, C4 and C5, is likewise stayed and referred to arbitration and to that extent determines and is struck out.
  • The Respondent's claim and the Applicant's Counterclaim arising under or referable to Annexure C2 (which contains no arbitration agreement) shall remain in this Court and be tried and determined by this Court.
  • The Respondent's claims against the 2nd, 3rd and 4th Defendants shall remain in this Court, save that the arbitral tribunal is at liberty, under its kompetenz-kompetenz, to consider whether the 2nd Defendant is bound by the arbitration agreements.
  • The hearing of the residual claims in this Court is stayed on a case-management basis pending determination of the arbitration, with liberty to apply to lift the stay on good cause shown after six months.
  • The Applicant shall, within fourteen days, write to the Ministry responsible for justice enquiring into the operational readiness of the CADER department to discharge its appointing function, and place the response on the record within seven days of receipt.
  • Failing a positive response from the Ministry within twenty-eight days, the parties shall within a further fourteen days endeavour jointly to nominate a sole arbitrator from lists of accredited arbitrators in Uganda.
  • Failing joint nomination, either party may apply to any appointing authority under the Arbitration and Conciliation Act to appoint a sole arbitrator.
  • The costs of this application and of the arbitration so referred shall be determined by the arbitral tribunal.
  • Costs in the main suit shall abide the outcome of the proceedings therein.

Rules and key headnotes

Arbitration & ADR — Stay of Proceedings under Section 5(1) — Conditions for Reference
For the court's power under section 5(1) of the Arbitration and Conciliation Act to be invoked, the applicant must show that a dispute exists, that the dispute is arbitrable, that it is governed by a valid and enforceable arbitration agreement, and that it falls within the scope of that agreement; where those conditions are met the court has no discretion to refuse a reference.
Arbitration & ADR — Arbitrability — Claims in Tort, Fraud and Equity
The mere fact that a claim is pleaded in tort, fraud simpliciter or equity does not render it non-arbitrable; where economic torts such as deceit, conspiracy and causing financial loss arise between commercial parties out of a private contractual relationship, they concern rights in personam and remain arbitrable, the character of the dispute rather than the cause of action pleaded being decisive.
Arbitration & ADR — Separability and Kompetenz-Kompetenz — Section 16
An arbitration clause is a separate and independent contract that survives the expiry, termination or repudiation of the underlying agreement, and by force of section 16 of the Arbitration and Conciliation Act the arbitral tribunal has primary jurisdiction to rule on its own jurisdiction, including objections to the existence or scope of the arbitration agreement.
Arbitration & ADR — Non-Signatories — Privity and Consent
A non-signatory may only be bound by an arbitration agreement where a recognised consent-based exception is established, namely express or implied consent, agency, veil-piercing or alter ego, composite transactions or the group-of-companies analysis, or estoppel including direct-benefits estoppel; absent such pleading and proof, non-signatory defendants cannot be drawn into the arbitration, and their presence in the suit does not defeat reference of the contractual claims between the signatories.
Civil Procedure — Waiver of Right to Arbitrate — Effect of Filing Defence and Counterclaim
The filing of a written statement of defence together with a counterclaim does not constitute a step in the proceedings amounting to waiver of the right to arbitrate, because section 5(1) of the Arbitration and Conciliation Act expressly contemplates an application for reference after a defence is filed; waiver requires an unequivocal election to litigate the substantial merits, made with knowledge of all material circumstances.
Civil Procedure — Inherent Powers under Section 98 CPA — Limits and Case-Management Stay
The inherent power under section 98 of the Civil Procedure Act is residual and supplementary and cannot be used to refer non-consenting parties or non-arbitrable claims to arbitration, since arbitration rests on consent and the Arbitration and Conciliation Act is a complete code on references; the court may, however, order a case-management stay of residual proceedings where there is sufficient overlap of issues, no injustice to the plaintiff and no real risk of unjust prejudice to the defendant.
Arbitration & ADR — Appointment of Arbitrator — CADER after the Amendment Act 2024
Following the Arbitration and Conciliation (Amendment) Act, 2024, which abolished CADER as a corporate body, re-established it as a department in the Ministry responsible for justice and repealed the provisions requiring a Governing Council, the earlier authorities holding CADER inoperative as an appointing authority no longer apply automatically; a party seeking designation of an alternative appointing authority must first ascertain whether the CADER department is operationally able to discharge its appointing function.

Legislation cited (34)

Cases cited (54)

  • AfriPower Engineering Company Limited v Roko Construction Limited (Civil Suit No. 216 of 2022)
  • ATC Uganda Limited v Smile Communications Uganda Limited (Miscellaneous Application No. 621 of 2023)
  • Newplan Limited v Mercentile Properties Limited (Miscellaneous Application No. 234 of 2023)
  • British American Tobacco v Lira Tobacco Stores (Miscellaneous Application No. 924 of 2013)
  • Babcon Uganda Limited v Mbale Resort Hotel Limited (Civil Appeal No. 6 of 2016)
  • Nile Breweries Limited v Lugogo Events and Entertainment Limited t/a Legends (Miscellaneous Application No. 1497 of 2022)
  • United Steel Workers of America v Warrior & Gulf Navigation Company, 363 US 574 (1960)
  • Fulham Football Club (1987) Ltd v Richards [2011] EWCA Civ 855
  • Prishan Gopal v. Parveen Rajput CS (OS) 523/2018
  • Booz Allen & Hamilton Inc. v. SBI Home Finance Ltd (2011) 5 SCC 532
  • A. Ayyasamy v. A. Paramasivam 2016 (10) SCC 386
  • Swiss Timing Ltd. v. Commonwealth Games 2010 Organising Committee 2014 (6) SCC 677
  • Harbour Assurance Co. Ltd v Kansa General International Insurance Co. Ltd [1992] 1 Lloyd's L.Rep. 81
  • Heyman v Darwins Ltd [1942] AC 356
  • Vantage Mezzanine Fund II Partnership v Simba Properties Investments Co Ltd (Miscellaneous Application No. 201 of 2020)
  • Premium Nafta Products Ltd v Fili Shipping Co. Ltd [2007] UKHL 40
  • Rock Trust Contractors (U) Limited v DFCU Bank (Miscellaneous Application No. 1033 of 2023)
  • TMA Architects v Prome Consultants Limited (Miscellaneous Cause No. 80 of 2021)
  • Fiona Trust & Holding Corp v Privalov [2007] UKHL 40
  • KOM Consults Limited v Nambale Enterprises Ltd (Miscellaneous Application No. 1144 of 2025)
  • Thomson-CSF, S.A. v American Arbitration Association, 64 F.3d 773 (2d Cir. 1995)
  • Arthur Andersen LLP v Carlisle, 556 U.S. 624 (2009)
  • GE Energy Power Conversion France SAS v Outokumpu Stainless LLC, 140 S. Ct. 1637 (2020)
  • Chloro Controls India Pvt Ltd v Severn Trent Water Purification Inc (2012) INSC 542
  • Ameet Lalchand Shah v Rishabh Enterprises (2018) 15 SCC 678
  • Peterson Farms Inc v C & M Farming Ltd [2004] EWHC 121 (Comm)
  • Dallah Real Estate & Tourism Holding Co v Ministry of Religious Affairs of Pakistan [2010] UKSC 46
  • Cox and Kings v SAP India Pvt Ltd (supra)
  • Reveille Independent LLC v Anotech International (UK) Limited [2016] EWCA Civ 443
  • Lindsay International Pvt Ltd v Laxmi Niwas Mittal, 2022 SCC OnLine Cal 425
  • KPMG LLP v Cocchi, 565 U.S. 18 (2011)
  • Select Garments Limited v Old Stanley Hotel Limited (Civil Suit No. 674 of 2014)
  • AC Yafeng Construction Company Limited v The Living World Assembly and Others [2022] UGCommC 103
  • Mary Matovu v Century Bottling Company Limited (Civil Suit No. 202 of 2016)
  • Eagle Star Insurance Co. Ltd v Yuval Insurance Co. Ltd [1978] 1 Lloyd's Rep 357
  • Agri-Industrial Management Agency Ltd v Kayonza Growers Tea Factory Ltd (Civil Suit No. 819 of 2004)
  • TSP-Hope, Inc. v Home Innovators of Illinois, LLC, No. 4-07-1028 (Appellate Court of Illinois, Fourth District, 26 June 2008)
  • Andre Franklin, Inc. v Wax, Case No. 2D14-1151 (District Court of Appeal of Florida, Second District)
  • Padam Sen v State of Uttar Pradesh, AIR 1961 SC 218
  • Manohar Lal Chopra vs Rai Bahadur Rao Raja Seth Hiralal 1962 AIR 527
  • Afcons Infrastructure Ltd v Cherian Varkey Construction Co. (P) Ltd, (2010) 8 SCC 24
  • Dean Witter Reynolds Inc v Byrd, 470 US 213 (1985)
  • Moses H. Cone Memorial Hospital v Mercury Construction Corp, 460 US 1 (1983)
  • TELUS Communications Inc v Wellman, 2019 SCC 19
  • Seidel v TELUS Communications Inc, 2011 SCC 15
  • Republic of Mozambique v Privinvest Shipbuilding SAL (Holding) [2023] UKSC 32
  • Reichhold Norway ASA v Goldman Sachs International [2000] 1 WLR 173 (CA, England)
  • Maybank Kim Eng Securities Pte Ltd v Lim Keng Yong [2016] SGHC 68
  • Rals International Pte Ltd v Cassa di Risparmio di Parma e Piacenza SpA [2016] SGCA 53
  • Golf View Inn (U) Ltd v Barclays Bank (U) Ltd (Civil Suit No. 358 of 2009)
  • Zhonghao Overseas Construction Engineering Co Ltd v Attorney General (Miscellaneous Application No. 1995 of 2023)
  • Buildmast Engineering Limited v Board of Governors of St. Mary's Ediofe Girls Secondary School (Miscellaneous Cause No. 101 of 2025)
  • LABX Scientific Ltd v Katakwi District Local Government (Miscellaneous Cause No. 2 of 2025)
  • Roughton International Limited v Uganda Investment Authority (Miscellaneous Cause No. 96 of 2025)

Full judgment

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Kibo Media Limited v Nile Breweries Limited [2026] UGCommC 325 (16 June 2026)
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.