Introduction
1. This Ruling determines the Claimant’s Notice of Preliminary Objection dated 9th May 2025, challenging the Respondent’s Party-and-Party Bill of Costs dated 17th February 2025.
2. The Preliminary Objection is premised on the contention that this Court, and by extension the Taxing Master, lacks jurisdiction to tax costs arising from arbitral proceedings. In support of the Objection, the Claimant filed submissions dated 17th November 2025.
3. According to the Claimant, the Arbitration Act (Cap 49) constitutes a complete and self-contained legal code. Citing the landmark Court of Appeal decision in Anne Mumbi Hinga v Victoria Njoki Gathara [2009] eKLR, the Claimant emphasized that the High Court’s intervention in arbitral matters is strictly circumscribed by Sections 35, 36, and 37 of the Act.
4. The Claimant contended that Section 32B of the Arbitration Act mandates that the costs and expenses of an arbitration are to be exclusively determined and apportioned by the Arbitral Tribunal within its award. They argue that where a Tribunal fails to tax or specify the exact quantum of costs, Section 32B requires each party to bear its own legal expenses.
5. In support of that argument, the Claimant cited, among others, Transworld Safaris (K) Ltd v Eagle Aviation Limited [2012] KEHC 614 (KLR), where Mabeya J. held that the High Court Taxing Master acts outside his jurisdiction if he attempts to ascertain or quantify costs incurred before an arbitrator.
6. Finally, invoking the Supreme Court precedent in Samuel Kamau Macharia & another v Kenya Commercial Bank Ltd & 2 others [2012] eKLR, the Claimant asserted that an Arbitral Tribunal cannot legally "donate" or arrogate jurisdiction to the High Court where the Constitution or written statutes have not expressly given it.
The Respondent’s Case
7. The Respondent opposed the Preliminary Objection through its response dated 6th November 2025, contending that the Bill of Costs is properly before the Court. They submitted that the Bill of Costs flows directly from the arbitral award, which was delivered on 15th December 2023 and subsequently recognized and enforced by this Court on 1st October 2024.
8. The Respondent maintained that the award by the arbitral tribunal expressly directed that Party-and-Party Bills of Costs be filed in the High Court, and that upon recognition by this Court, the award acquired the status of a judgment of this Court, and is therefore enforceable as such.
9. They contended that the Claimant cannot now seek, through a Preliminary Objection, to undermine or defeat the effect of a judgment that it neither opposed nor challenged through the mechanisms provided under Section 35(2) of the Arbitration Act.
10. They maintained that the Preliminary Objection is an afterthought intended to defeat enforcement of the arbitral award and that equity aids the vigilant and not the indolent.
11. In the alternative, the Respondent submitted that if this Court finds merit in the Claimant's jurisdictional challenge, it should not strike out the Bill of Costs outright. Instead, the Court is urged to invoke Section 35(4) of the Arbitration Act to suspend the taxation proceedings, thereby granting the Arbitral Tribunal an opportunity to resume its sessions and tax the costs directly under Section 32B, correcting what they termed as a technical oversight.
12. The Respondents argued that dismissing the Bill entirely would leave them without a remedy, violating the spirit of substantive justice enshrined in Article 159(2)(d) of the Constitution.
Analysis and Determination
13. Having considered the Preliminary Objection, the response thereto, and the rival submissions by the parties, the Court finds that the primary issue for determination is whether this Court (the Taxing Master) has jurisdiction to tax the Respondent’s Party-and-Party Bill of Costs arising from arbitral proceedings.
14. Before delving into the issue identified, the Court finds it necessary to first set out the background of the present dispute.
15. By a final Arbitral Award delivered and dated 15th December 2023, the Arbitral Tribunal directed that:
"The Respondent (the Applicant herein) shall file her Party and Party Bills of Costs in the High Court of Kenya."
16. Following the delivery of the Award, the Respondent (as the Applicant in enforcement proceedings) moved this Court on 28th March 2024 seeking recognition and enforcement of the Arbitral Award. The Claimant did not file a response or written submissions to oppose that application.
17. Consequently, on 19th December 2024, this Court delivered a formal Ruling allowing the enforcement of the Arbitral Award with costs.
18. Backed by the Tribunal's specific direction and this Court's subsequent enforcement orders, the Respondent filed the disputed Party-and-Party Bill of Costs in the sum of Kshs. 2,935,141.00 before the High Court Taxing Master on 17th February 2025. It is this step by the Respondent that instigated the instant Preliminary Objection by the Claimant.
19. The primary argument by the Claimant is that under Section 32B of the Arbitration Act, which they assert is a complete code, ascertainment of costs and expenses in arbitral matters is vested in the arbitral tribunal. The Respondent argues otherwise.
20. Section 32B of the Arbitration Act provides as follows:
“32B. Costs and expenses
(1)Unless otherwise agreed by the parties, the costs and expenses of an arbitration, being the legal and other expenses of the parties, the fees and expenses of the arbitral tribunal and any other expenses related to the arbitration, shall be as determined and apportioned by the arbitral tribunal in its award under this section, or any additional award under section 34(5).”
21. From the above, it is evident that this provision vests primary jurisdiction over arbitration costs in the arbitral tribunal. It contemplates that such costs are to be determined either in the final award or in an additional award under Section 34(5).
22. The jurisprudence of this Court has consistently affirmed that position. In Transworld Safaris (K) Ltd v Eagle Aviation Ltd [2012] eKLR, the Court held that the arbitral tribunal has exclusive jurisdiction to determine costs, and that the Court cannot assume that function.
23. Similarly, in Kenya Re-Insurance Corporation Ltd v Roadtainers (Mombasa) Ltd [2023] KEHC 24619, the Court reaffirmed that the determination of arbitral costs falls squarely within the tribunal’s mandate.
24. The Arbitration Act is designed to limit court intervention. This is captured in Section 10, which provides that:
“Except as provided in this Act, no court shall intervene in matters governed by this Act.”
25. The Court of Appeal in Anne Mumbi Hinga v Victoria Njoki Gathara [2009] eKLR emphasized that the Act is a complete code and that the High Court has no jurisdiction outside the specific provisions of Sections 35 and 37.
26. The Claimant’s argument, therefore, correctly reflects the general legal position.
27. The present case, however, is distinguishable. The arbitral award in question has already been recognised under Section 36 of the Arbitration Act, which provides that once an arbitral award has been recognised, it becomes enforceable as if it were a decree of the High Court.
28. When this Court allowed the Respondent’s application for enforcement on 19th December 2024, the entire Arbitral Award – including the order by the arbitral tribunal that the Respondent file in the High Court the Party-and-Party Bill of Costs- was integrated into an enforceable order of this Court.
29. The Claimant had multiple statutory opportunities to object to the cost-filing mechanism. Under Section 35, they could have applied to set aside that specific portion of the Award. They failed to do so. Under Section 36, they were explicitly invited to show cause why the Award should not be recognized and enforced. They chose not to file any response.
30. It is therefore impermissible in law for the Claimant, at this point, long after the statutory window has lapsed, to purport to challenge a portion of the award.
31. Upon recognition, the award assumes the status of a decree of the Court. The Court is then seized of jurisdiction not to revisit the merits of the award, but to enforce it. It is noteworthy that the recognized award expressly directed that the successful party file its Bill of Costs in the High Court.
32. In Senaca International Limited v Bollore Transport and Logistics (Kenya) Limited [2024] KEHC 10304 (KLR), this Court (Mulwa J), while dealing with a substantially similar matter, allowed taxation of the Party and Party Bill of Costs, arising out of an Arbitration (where the arbitral tribunal had directed so), to be taxed in the High Court. The Court, after considering the application, issued a final order that: -
“The Party and Party Bill of Costs arising out of an Arbitration between Senaca International Limited and Bollore Transport and Logistics Limited shall be taxed in the High Court.”
33. From the foregoing, the Court finds that the taxation by the Taxing Master of this Court, in the context of this case (where an arbitral tribunal has expressly directed taxation by this Court, and the award recognized and adopted by this Court), does not amount to an impermissible assumption of jurisdiction contrary to Section 10 of the Arbitration Act.
34. It is clear that the Court is not purporting to determine arbitral costs in the first instance, nor substitute the arbitral tribunal’s role. Rather, the Court is simply giving effect to a binding and recognized award, whose terms include a direction on the forum and process for taxation.
35. Consequently, the Taxing Master, in this context, does not exercise original jurisdiction over arbitration costs, but the role is instead ancillary, undertaken as part of the Court’s execution machinery in enforcing a decree arising from the recognized award.
36. To hold otherwise and strike out the Bill of Costs for want of jurisdiction would introduce an irreconcilable absurdity: it would render a valid order of this Court entirely un-executable, leaving the successful party with a right to costs but no forum to quantify them, since the Arbitral Tribunal is already functus officio. Such a result would directly subvert the constitutional command under Article 159(2)(d) of the Constitution of Kenya, 2010, which requires courts to administer justice without undue regard to procedural technicalities.
37. The upshot of the foregoing is that the Court finds and holds that the Claimant’s Preliminary Objection dated 9th May 2025 is legally untenable, barred by the doctrine of statutory finality, and constitutes a collateral challenge to a final decree of this Court. The Taxing Master of this Court is fully empowered to proceed with the taxation of the Bill of Costs in accordance with the terms of the enforced Award.
38. Accordingly, the Court issues the following orders:
i. The Claimant’s Notice of Preliminary Objection dated 9th May 2025 is hereby dismissed.
ii. The Respondent’s Party-and-Party Bill of Costs dated 17th February 2025 is hereby remitted back to the High Court Taxing Master to be heard and determined on its merits.
iii. The Claimant shall bear the Respondent's costs of this Preliminary Objection.
39. It is so ordered.
DATED, SIGNED, AND DELIVERED AT NAIROBI
THIS 21ST DAY OF MAY 2026
HON. MR. JUSTICE MOSES ADO
Judge of the High Court
In the Presence of:
Moses C/A
Kigata…………………for the Claimant
Ms Wahome……………for the Respondent
1. This Ruling determines the Claimant’s Notice of Preliminary Objection dated 9th May 2025, challenging the Respondent’s Party-and-Party Bill of Costs dated 17th February 2025.
2. The Preliminary Objection is premised on the contention that this Court, and by extension the Taxing Master, lacks jurisdiction to tax costs arising from arbitral proceedings. In support of the Objection, the Claimant filed submissions dated 17th November 2025.
3. According to the Claimant, the Arbitration Act (Cap 49) constitutes a complete and self-contained legal code. Citing the landmark Court of Appeal decision in Anne Mumbi Hinga v Victoria Njoki Gathara [2009] eKLR, the Claimant emphasized that the High Court’s intervention in arbitral matters is strictly circumscribed by Sections 35, 36, and 37 of the Act.
4. The Claimant contended that Section 32B of the Arbitration Act mandates that the costs and expenses of an arbitration are to be exclusively determined and apportioned by the Arbitral Tribunal within its award. They argue that where a Tribunal fails to tax or specify the exact quantum of costs, Section 32B requires each party to bear its own legal expenses.
5. In support of that argument, the Claimant cited, among others, Transworld Safaris (K) Ltd v Eagle Aviation Limited [2012] KEHC 614 (KLR), where Mabeya J. held that the High Court Taxing Master acts outside his jurisdiction if he attempts to ascertain or quantify costs incurred before an arbitrator.
6. Finally, invoking the Supreme Court precedent in Samuel Kamau Macharia & another v Kenya Commercial Bank Ltd & 2 others [2012] eKLR, the Claimant asserted that an Arbitral Tribunal cannot legally "donate" or arrogate jurisdiction to the High Court where the Constitution or written statutes have not expressly given it.
The Respondent’s Case
7. The Respondent opposed the Preliminary Objection through its response dated 6th November 2025, contending that the Bill of Costs is properly before the Court. They submitted that the Bill of Costs flows directly from the arbitral award, which was delivered on 15th December 2023 and subsequently recognized and enforced by this Court on 1st October 2024.
8. The Respondent maintained that the award by the arbitral tribunal expressly directed that Party-and-Party Bills of Costs be filed in the High Court, and that upon recognition by this Court, the award acquired the status of a judgment of this Court, and is therefore enforceable as such.
9. They contended that the Claimant cannot now seek, through a Preliminary Objection, to undermine or defeat the effect of a judgment that it neither opposed nor challenged through the mechanisms provided under Section 35(2) of the Arbitration Act.
10. They maintained that the Preliminary Objection is an afterthought intended to defeat enforcement of the arbitral award and that equity aids the vigilant and not the indolent.
11. In the alternative, the Respondent submitted that if this Court finds merit in the Claimant's jurisdictional challenge, it should not strike out the Bill of Costs outright. Instead, the Court is urged to invoke Section 35(4) of the Arbitration Act to suspend the taxation proceedings, thereby granting the Arbitral Tribunal an opportunity to resume its sessions and tax the costs directly under Section 32B, correcting what they termed as a technical oversight.
12. The Respondents argued that dismissing the Bill entirely would leave them without a remedy, violating the spirit of substantive justice enshrined in Article 159(2)(d) of the Constitution.
Analysis and Determination
13. Having considered the Preliminary Objection, the response thereto, and the rival submissions by the parties, the Court finds that the primary issue for determination is whether this Court (the Taxing Master) has jurisdiction to tax the Respondent’s Party-and-Party Bill of Costs arising from arbitral proceedings.
14. Before delving into the issue identified, the Court finds it necessary to first set out the background of the present dispute.
15. By a final Arbitral Award delivered and dated 15th December 2023, the Arbitral Tribunal directed that:
"The Respondent (the Applicant herein) shall file her Party and Party Bills of Costs in the High Court of Kenya."
16. Following the delivery of the Award, the Respondent (as the Applicant in enforcement proceedings) moved this Court on 28th March 2024 seeking recognition and enforcement of the Arbitral Award. The Claimant did not file a response or written submissions to oppose that application.
17. Consequently, on 19th December 2024, this Court delivered a formal Ruling allowing the enforcement of the Arbitral Award with costs.
18. Backed by the Tribunal's specific direction and this Court's subsequent enforcement orders, the Respondent filed the disputed Party-and-Party Bill of Costs in the sum of Kshs. 2,935,141.00 before the High Court Taxing Master on 17th February 2025. It is this step by the Respondent that instigated the instant Preliminary Objection by the Claimant.
19. The primary argument by the Claimant is that under Section 32B of the Arbitration Act, which they assert is a complete code, ascertainment of costs and expenses in arbitral matters is vested in the arbitral tribunal. The Respondent argues otherwise.
20. Section 32B of the Arbitration Act provides as follows:
“32B. Costs and expenses
(1)Unless otherwise agreed by the parties, the costs and expenses of an arbitration, being the legal and other expenses of the parties, the fees and expenses of the arbitral tribunal and any other expenses related to the arbitration, shall be as determined and apportioned by the arbitral tribunal in its award under this section, or any additional award under section 34(5).”
21. From the above, it is evident that this provision vests primary jurisdiction over arbitration costs in the arbitral tribunal. It contemplates that such costs are to be determined either in the final award or in an additional award under Section 34(5).
22. The jurisprudence of this Court has consistently affirmed that position. In Transworld Safaris (K) Ltd v Eagle Aviation Ltd [2012] eKLR, the Court held that the arbitral tribunal has exclusive jurisdiction to determine costs, and that the Court cannot assume that function.
23. Similarly, in Kenya Re-Insurance Corporation Ltd v Roadtainers (Mombasa) Ltd [2023] KEHC 24619, the Court reaffirmed that the determination of arbitral costs falls squarely within the tribunal’s mandate.
24. The Arbitration Act is designed to limit court intervention. This is captured in Section 10, which provides that:
“Except as provided in this Act, no court shall intervene in matters governed by this Act.”
25. The Court of Appeal in Anne Mumbi Hinga v Victoria Njoki Gathara [2009] eKLR emphasized that the Act is a complete code and that the High Court has no jurisdiction outside the specific provisions of Sections 35 and 37.
26. The Claimant’s argument, therefore, correctly reflects the general legal position.
27. The present case, however, is distinguishable. The arbitral award in question has already been recognised under Section 36 of the Arbitration Act, which provides that once an arbitral award has been recognised, it becomes enforceable as if it were a decree of the High Court.
28. When this Court allowed the Respondent’s application for enforcement on 19th December 2024, the entire Arbitral Award – including the order by the arbitral tribunal that the Respondent file in the High Court the Party-and-Party Bill of Costs- was integrated into an enforceable order of this Court.
29. The Claimant had multiple statutory opportunities to object to the cost-filing mechanism. Under Section 35, they could have applied to set aside that specific portion of the Award. They failed to do so. Under Section 36, they were explicitly invited to show cause why the Award should not be recognized and enforced. They chose not to file any response.
30. It is therefore impermissible in law for the Claimant, at this point, long after the statutory window has lapsed, to purport to challenge a portion of the award.
31. Upon recognition, the award assumes the status of a decree of the Court. The Court is then seized of jurisdiction not to revisit the merits of the award, but to enforce it. It is noteworthy that the recognized award expressly directed that the successful party file its Bill of Costs in the High Court.
32. In Senaca International Limited v Bollore Transport and Logistics (Kenya) Limited [2024] KEHC 10304 (KLR), this Court (Mulwa J), while dealing with a substantially similar matter, allowed taxation of the Party and Party Bill of Costs, arising out of an Arbitration (where the arbitral tribunal had directed so), to be taxed in the High Court. The Court, after considering the application, issued a final order that: -
“The Party and Party Bill of Costs arising out of an Arbitration between Senaca International Limited and Bollore Transport and Logistics Limited shall be taxed in the High Court.”
33. From the foregoing, the Court finds that the taxation by the Taxing Master of this Court, in the context of this case (where an arbitral tribunal has expressly directed taxation by this Court, and the award recognized and adopted by this Court), does not amount to an impermissible assumption of jurisdiction contrary to Section 10 of the Arbitration Act.
34. It is clear that the Court is not purporting to determine arbitral costs in the first instance, nor substitute the arbitral tribunal’s role. Rather, the Court is simply giving effect to a binding and recognized award, whose terms include a direction on the forum and process for taxation.
35. Consequently, the Taxing Master, in this context, does not exercise original jurisdiction over arbitration costs, but the role is instead ancillary, undertaken as part of the Court’s execution machinery in enforcing a decree arising from the recognized award.
36. To hold otherwise and strike out the Bill of Costs for want of jurisdiction would introduce an irreconcilable absurdity: it would render a valid order of this Court entirely un-executable, leaving the successful party with a right to costs but no forum to quantify them, since the Arbitral Tribunal is already functus officio. Such a result would directly subvert the constitutional command under Article 159(2)(d) of the Constitution of Kenya, 2010, which requires courts to administer justice without undue regard to procedural technicalities.
37. The upshot of the foregoing is that the Court finds and holds that the Claimant’s Preliminary Objection dated 9th May 2025 is legally untenable, barred by the doctrine of statutory finality, and constitutes a collateral challenge to a final decree of this Court. The Taxing Master of this Court is fully empowered to proceed with the taxation of the Bill of Costs in accordance with the terms of the enforced Award.
38. Accordingly, the Court issues the following orders:
i. The Claimant’s Notice of Preliminary Objection dated 9th May 2025 is hereby dismissed.
ii. The Respondent’s Party-and-Party Bill of Costs dated 17th February 2025 is hereby remitted back to the High Court Taxing Master to be heard and determined on its merits.
iii. The Claimant shall bear the Respondent's costs of this Preliminary Objection.
39. It is so ordered.
DATED, SIGNED, AND DELIVERED AT NAIROBI
THIS 21ST DAY OF MAY 2026
HON. MR. JUSTICE MOSES ADO
Judge of the High Court
In the Presence of:
Moses C/A
Kigata…………………for the Claimant
Ms Wahome……………for the Respondent