A CONTRACT multi-national company embroiled in court cases for commercial crimes and sabotage in Rwanda has suffered a blow after the high court in Nairobi directed that an objection it has raised against a USD2 million award be returned to the foreign court for determination.
Thomas&Piron Grand Lacs Limited has been fighting to set aside an award an arbitrator gave in favour of Whitefield Investment limited following its failure to finish a contract.
The two entered into an agreement for the construction of warehouses, staff toilet block and associated external works on D9 Free trade Zone in Kigali, Rwanda on September 13 2013.
Grand Lacs was to finish the work on June 2016 but by August 2016, it had not completed the project and instead abandoned the site of construction without notice.The company has been accused of hiding material facts concerning the dispute and misleading the courts in Kenya and Rwanda.
“The agreement between the parties required that any dispute arsing be referred to an arbitrator within 30 days, then the arbitrator be appointed by the Chairman o Vice chairman of the Architectural Association of Kenya on request of the applying party,” lawyer Eddy Orinda said.
The court heard that by October 3 2016 the parties had failed to appoint the Arbitrator and thus the President of the Architectural Association of Kenya appointed Emmanuel Ochola Odhiambo as the arbitrator who after hearings and a site visit gave the award.
Whitefield made advance payments to the contractor expecting the project to be completed within 36 weeks and later was to indulge Grand Lacs after a request for extension but the work remained unfinished, culminating into “abandonment without notice.”
Grand Lacs opposed the first round of arbitration after hearings and the site visit and instead lodged a court case in Nairobi citing loss of confidence in the arbitrator and demanding that he withdraws from the process.
The case was heard and Grand Lacs lost with a direction the matter be settled in Rwanda.
“We opposed the case as it was delay tactic and even the arbitrator directed that Grand makes a formal application in accordance with the Rwandan laws,” Orinda said.
After the hearing, and the Kenyan judge directive that the matter be settled in Rwanda, Grand Lacs ignoreded the directions of the arbitrator, the ruling of the court and opted to apply to AAK for the removal of the arbitrator and when it was not successful went all the way to Netherlands at the Permanent Court of Arbitration(PCA) to remove AAK as the appointing body and have a replacement.
“Prior to the respondents move to PCA the Arbitrator had issued them with the Notice of the Award which they did not oppose and the award was granted in our favour,” Orinda explained.
Court was misled
Grand Lacs also moved to the Rwanda Investigation Bureau(RIB) and made a claim that the award was forged, a claim that has not been followed up to date, according to the lawyer, and they concurrently moved to the high court in Rwanda that it had endorsed the award wrongly.
The court was misled to withdraw the award,Orinda said.
“We are in the process of appealing the decision of the Rwanda court to remove the stamp from the award and it is only fair that the respondents be compelled to do anything that will render the award nugatory,”Orinda added.
The PCA,having been moved by Grand Lacs removed the AAK from the process and appointed another body which later appointed Richard Omwela as the new arbitrator.
Orinda stated that Odhiambo’s mandate as the arbitrator was not withdrawn or successfully challenged and the appointment of Omwela was contrary to the original agreement.
Grand Lacs is accused of deliberate non-disclosure in court having misled the court in Rwanda on the award and the subsequent appointment of Omwela who also resigned from the matter.
Justice Grace Nzioka has rejected the preliminary objection filed by Grand Lacs and directed that the case returns to the Rwanda court.