Tribute to Hon. Justice Joseph Louis Onguto
A casual but potentially iconic photo of Chief Justice David Maraga sharing a light moment with Justice Louis Onguto during the Annual Judges Conference in Mombasa last year was released recently. It shows Justice Onguto as a bespectacled middle-aged man with greying hair at the temples and a balding scalp. All those captured in the picture are smiling, but not Justice Onguto, who is in the middle of a word and gesturing generously. He clearly was not short of words. But he expressed himself humorously.
He is also comfortably seated while everybody else, including his boss, are standing. Only a very brave person does that.The couple of men in the photo are wearing ties and and their trademark dark suits while the women are black throughout or with white blouses and checks in the Mombasa heat. Justice Onguto is in a white shirt but not a jacket. This suggests he was his own man and that His last posting was in High Court in Nairobi in the Commercial Division, which, which handles commercial disputes including those related to arbitration. One of the cases which Justice Onguto decided within the last one year is West Mount v. Tridev which is reported in the Kenya Law website.
A developer had engaged a contractor for the construction of some apartments in Nairobi. They adopted a standard contract known in short as the JBC contract of 1999 which stated that, “no arbitration proceedings shall be commenced on any dispute or difference where notice of a dispute or difference has not been given by the applying party within ninety days of the occurrence or discovery of the matter or issue giving rise to the dispute.” A dispute arose leading to the developer evicting the contractor from the site on 7th October 2013. The contractor protested that action in a letter dated the following day but did not commence arbitration till 28th September 2015, when it triggered the arbitration process. The arbitrator was promptly challenged by the developer for lack of jurisdiction, or mandate to hear the dispute, on the basis that his appointment was time-barred since the letter which led to his appointment was written over two years after the dispute arose. He ruled that he had jurisdiction.
The developer referred the matter to court in accordance with the Arbitration Act of Kenya of 1995. Justice Onguto dismissed the application with costs on 21st June 2017.On the face of it, both the dispute and the judgment are quite routine. However, the judgment has useful clues on the type of judge Onguto was. Firstly, the decision is easy to read. Apart from two Latin phrases, the meaning of which are in any case quite clear from the context, the judgment is written in simple language. His writing style is also user-friendly and easy to follow as it is packed under several sub-headings. He has used similar style in other cases.
Secondly, even though he started by saying that the case raised an important yet difficult question for consideration, he handled the issues with amazing clarity. That in spite of the advocates on both sides doing their best to complicate matters and confuse issues. He said they behaved “surprisingly and belligerently”. Thirdly, he quite easily explained the difference between a notice declaring a dispute and one seeking the appointment of an arbitrator. His decision was in fact based on the distinction between the two. Treating them as one would have led to a different outcome. The new JBC Contract, which is currently being drafted and will in all likelihood be used in thousands of construction contracts the next couple of decades if history is anything to go by, will benefit greatly from his interpretation.
Fourthly, he restricted himself to the application before him and deliberately refrained himself from being drawn into the construction dispute itself. That self-restraint is commendable and lacking in many court cases of similar nature. No names. Fifthly, he stated categorically that the application before him was a new matter and not an appeal of the arbitrator’s decision. That distinction has important implications on the court process and scope.The arbitration community is, and Justice Onguto also probably was, waiting with bated breath for Court of Appeal decision in the case of Bia Tosha v. Kenya Breweries & Others.
This, unlike the one referred to above, is explosive. It could easily be a leading authority on whether or not a commercial dispute which touches on alleged breach of fundamental rights under the Constitution of Kenya 2010 could be mediated or arbitrated in accordance with the contract. Justice Onguto’s decision was appealed against in the Court of Appeal but it has not been heard because a secondary issue ended up in the Supreme Court and must be decided first. He will never know the outcome of the appeal of his decision. He became truly functus officio before the appeal decision was out. If only for that reason, his demise was untimely. However, there are many other reasons as to why his passing away was untimely. Not least is that he joined the Judiciary in 2014, from private law practice, and so was there for just under four years.
Poleni sana to all those who had the pleasure of knowing, working, interacting and living with Justice Onguto.