'1. The application herein, by way of Chamber Summons dated 4th February 2025, is for the adoption of an arbitral award by the court for purposes of enforcement as a decree. The application is brought under section 36 of the Arbitration Act (Cap. 49) Laws of Kenya; Rules 4, 6, 9 and 11 of the Arbitration Rules, 1997; Article 159 of the Constitution; sections 1A, 1B and 59 of the Civil Procedure Act (Cap. 21) Laws of Kenya and all other enabling provisions of the law.
2. The orders sought are:
a. that the arbitral award dated 30th September 2024 issued by Njeri Kariuki, Chartered Arbitrator, and filed in court be adopted and recognized by the court.
b. that leave be granted to the applicants to enforce the said award as a decree of the court.
c. that the sum of KShs 1,675,450/= being the amount paid by the applicant/claimant as the costs of arbitration, together with interest at the rate of 14% p.a., be refunded to the applicants.
3. The application is based on several grounds and expounded in the affidavit of Archibald Githinji, sworn on 4th February 2025 and supplementary affidavit sworn on 30th April 2025. In summary, the dispute between the parties, was submitted to arbitration in accordance with the arbitration clause in the Agreement for Sale and Exchange dated 18th April 2011, which was signed by both the applicants and the respondent. Subsequently, the parties entered into a consent dated 20th July 2020 (although in the grounds and the supporting affidavit, this date is erroneously written as 20th July 2024) and the arbitral tribunal adopted the same as a consent award on 14th January 2022. The respondent, however failed to honour the terms of the consent award.
4. The applicant went to the arbitral tribunal by an application dated 20th August 2024 seeking to enforce the consent award as a final award of the arbitral tribunal. The application was allowed by the arbitrator who made and published the final award on 30th September 2024. The applicant settled the arbitrator’s costs of KShs 1,675,450/= on or about 28th November 2024 and was issued with the award on 2nd December 2024. The respondent has not complied with the terms of the final award. The respondent has also not filed any application to set aside the final award. In the circumstances, the applicant seeks that the same be recognized, adopted and enforced as a decree of this court.
5. The applicant has annexed to the supporting affidavit the certified copy of the final arbitral award dated 30th September 2024 made by the learned arbitrator and to the supplementary affidavit a certified copy of the Sale and Exchange Agreement bearing the arbitration clause.
6. The applicant deposes that the respondent was copied in the notice of the publication of the award and is therefore aware of the same.
7. The applicants depose further that they should get an order for payment of the costs of arbitration together with interest at 14%.
8. Learned counsel for the applicant filed submissions dated 2nd May 2025, urging the court to adopt and recognize the award for purposes of enforcement as a decree of the court. The applicant has set out the issues for determination to be; whether the applicants have made out a case for recognition and adoption of the final arbitral award as a judgment of the court, and whether the applicants are entitled to costs of the application.
9. The applicant submits that under section 32A of the Arbitration Act, any award issued by a competent arbitrator is a final award and is binding upon the parties. He submits that the finality of the award was underscored by the Court of Appeal in the case of Anne Mumbi Hinga v Victoria Njoki Gathara [2009] KECA 466 (KLR) where it stated that:
“We therefore reiterate that there is no right for any court to intervene in the arbitral process or in the award except in the situations specifically set out in the Arbitration Act or as previously agreed in advance by the parties and similarly there is no right of appeal to the High Court or the Court of Appeal against an award except in the circumstances set out in Section 39 of the Arbitration Act.”
10. Learned counsel submits that the applicants have satisfied the requirements for the adoption for enforcement of the final arbitral award as required under section 36 of the Arbitration Act and all the requirements set out under the Sale and Exchange Agreement were met. Further, that the applicant has produced the certified copy of the final arbitral award.
11. The applicants submit further that the respondents have not shown any grounds under section 37 of the Arbitration Act that would cause the award not to be recognized and enforced.
12. The applicants submit further that the respondent has not made an application for setting aside of the arbitral award.
13. I have considered the application and the submissions by counsel for the applicants. The respondent did not participate in the application despite being duly served. The issue for determination is whether the final arbitral award should be adopted and a decree issued for enforcement by this court.
14. Section 36 of the Arbitration Act provides for the recognition and enforcement of arbitration awards as follows: -
(1) A domestic arbitral award, shall be recognized as binding and, upon application in writing to the High Court, shall be enforced subject to this section and section 37.
(2)…
(3) Unless the High Court otherwise orders, the party relying on an arbitral award or applying for its enforcement must furnish—
(a) the original arbitral award or a duly certified copy of it; and
(b) the original arbitration agreement or a duly certified copy of it.
15. The applicant herein has shown that there is a final arbitral award between the applicants and the respondent. They have provided certified copies of the final arbitral award as well as the agreement upon which the parties referred their dispute to the arbitral tribunal.
16. The next issue to determine is whether there is any ground for refusal of recognition or enforcement of the arbitral awards.
17. Section 37 of the Arbitration Act provides for the grounds for refusal of recognition or enforcement of an arbitral award as follows:
(1) The recognition or enforcement of an arbitral award, irrespective of the state in which it was made, may be refused only—
(a) at the request of the party against whom it is invoked, if that party furnishes to the High Court proof that—
i. a party to the arbitration agreement was under some incapacity; or
ii. the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication of that law, under the law of the state where the arbitral award was made;
iii. the party against whom the arbitral award is invoked was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or
iv. the arbitral award deals with a dispute not contemplated by or not falling within the terms of the reference to arbitration, or it contains decisions on matters beyond the scope of the reference to arbitration, provided that if the decisions on matters referred to arbitration can be separated from those not so referred, that part of the arbitral award which contains decisions on matters referred to arbitration may be recognised and enforced; or
v. the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties or, failing any agreement by the parties, was not in accordance with the law of the state where the arbitration took place; or
vi. the arbitral award has not yet become binding on the parties or has been set aside or suspended by a court of the state in which, or under the law of which, that arbitral award was made; or
vii. the making of the arbitral award was induced or affected by fraud, bribery, corruption or undue influence;
(b) if the High Court finds that—
i. the subject-matter of the dispute is not capable of settlement by arbitration under the law of Kenya; or
ii. the recognition or enforcement of the arbitral award would be contrary to the public policy of Kenya.
(2) If an application for the setting aside or suspension of an arbitral award has been made to a court referred to in subsection (1)(a)(vi), the High Court may, if it considers it proper, adjourn its decision and may also, on the application of the party, claiming recognition or enforcement of the arbitral award, order the other party to provide appropriate security.
18. The respondent herein has not made any request to this court under section (1)(a) of the Act, let alone demonstrating the existence of any of the grounds thereunder for refusal of recognition or enforcement of the award. Equally, this court finds that no ground exists under paragraph (b) for refusal of recognition or enforcement of the award. I therefore find that none of the grounds for refusal of recognition or enforcement of the arbitral award as set out above has been shown to exist in the present case. I am satisfied that the same meets the requirements for recognition, and enforcement of an arbitral award as set out under section 36 of the Arbitration Act.
19. I am further satisfied that the respondent had full knowledge of the delivery of the final award whose terms it is yet to fulfill. The contents of the said award have not been controverted. Further, no application has been made for the setting aside of the award under Section 35 of the Arbitration Act .
20. Consequently, it is hereby ordered that the final arbitral award dated 30th September 2024 be and is hereby recognized for enforcement as a decree of this court. The Applicant is at liberty to enforce the award as a decree of this court.
21. For the foregoing reasons, the application is allowed with no orders as to costs.
22. Orders accordingly.
Written, dated, signed, and delivered on the virtual Platform, Teams, this 9th day of September 2025.
ANDAYI W. F.
JUDGE
In the presence of:
Awuor (Ms) holding brief for Ochieng for the applicants.
N/A for the Respondent.
Carlos: Court assistant.
ANDAYI W. F.
JUDGE
'
2. The orders sought are:
a. that the arbitral award dated 30th September 2024 issued by Njeri Kariuki, Chartered Arbitrator, and filed in court be adopted and recognized by the court.
b. that leave be granted to the applicants to enforce the said award as a decree of the court.
c. that the sum of KShs 1,675,450/= being the amount paid by the applicant/claimant as the costs of arbitration, together with interest at the rate of 14% p.a., be refunded to the applicants.
3. The application is based on several grounds and expounded in the affidavit of Archibald Githinji, sworn on 4th February 2025 and supplementary affidavit sworn on 30th April 2025. In summary, the dispute between the parties, was submitted to arbitration in accordance with the arbitration clause in the Agreement for Sale and Exchange dated 18th April 2011, which was signed by both the applicants and the respondent. Subsequently, the parties entered into a consent dated 20th July 2020 (although in the grounds and the supporting affidavit, this date is erroneously written as 20th July 2024) and the arbitral tribunal adopted the same as a consent award on 14th January 2022. The respondent, however failed to honour the terms of the consent award.
4. The applicant went to the arbitral tribunal by an application dated 20th August 2024 seeking to enforce the consent award as a final award of the arbitral tribunal. The application was allowed by the arbitrator who made and published the final award on 30th September 2024. The applicant settled the arbitrator’s costs of KShs 1,675,450/= on or about 28th November 2024 and was issued with the award on 2nd December 2024. The respondent has not complied with the terms of the final award. The respondent has also not filed any application to set aside the final award. In the circumstances, the applicant seeks that the same be recognized, adopted and enforced as a decree of this court.
5. The applicant has annexed to the supporting affidavit the certified copy of the final arbitral award dated 30th September 2024 made by the learned arbitrator and to the supplementary affidavit a certified copy of the Sale and Exchange Agreement bearing the arbitration clause.
6. The applicant deposes that the respondent was copied in the notice of the publication of the award and is therefore aware of the same.
7. The applicants depose further that they should get an order for payment of the costs of arbitration together with interest at 14%.
8. Learned counsel for the applicant filed submissions dated 2nd May 2025, urging the court to adopt and recognize the award for purposes of enforcement as a decree of the court. The applicant has set out the issues for determination to be; whether the applicants have made out a case for recognition and adoption of the final arbitral award as a judgment of the court, and whether the applicants are entitled to costs of the application.
9. The applicant submits that under section 32A of the Arbitration Act, any award issued by a competent arbitrator is a final award and is binding upon the parties. He submits that the finality of the award was underscored by the Court of Appeal in the case of Anne Mumbi Hinga v Victoria Njoki Gathara [2009] KECA 466 (KLR) where it stated that:
“We therefore reiterate that there is no right for any court to intervene in the arbitral process or in the award except in the situations specifically set out in the Arbitration Act or as previously agreed in advance by the parties and similarly there is no right of appeal to the High Court or the Court of Appeal against an award except in the circumstances set out in Section 39 of the Arbitration Act.”
10. Learned counsel submits that the applicants have satisfied the requirements for the adoption for enforcement of the final arbitral award as required under section 36 of the Arbitration Act and all the requirements set out under the Sale and Exchange Agreement were met. Further, that the applicant has produced the certified copy of the final arbitral award.
11. The applicants submit further that the respondents have not shown any grounds under section 37 of the Arbitration Act that would cause the award not to be recognized and enforced.
12. The applicants submit further that the respondent has not made an application for setting aside of the arbitral award.
13. I have considered the application and the submissions by counsel for the applicants. The respondent did not participate in the application despite being duly served. The issue for determination is whether the final arbitral award should be adopted and a decree issued for enforcement by this court.
14. Section 36 of the Arbitration Act provides for the recognition and enforcement of arbitration awards as follows: -
(1) A domestic arbitral award, shall be recognized as binding and, upon application in writing to the High Court, shall be enforced subject to this section and section 37.
(2)…
(3) Unless the High Court otherwise orders, the party relying on an arbitral award or applying for its enforcement must furnish—
(a) the original arbitral award or a duly certified copy of it; and
(b) the original arbitration agreement or a duly certified copy of it.
15. The applicant herein has shown that there is a final arbitral award between the applicants and the respondent. They have provided certified copies of the final arbitral award as well as the agreement upon which the parties referred their dispute to the arbitral tribunal.
16. The next issue to determine is whether there is any ground for refusal of recognition or enforcement of the arbitral awards.
17. Section 37 of the Arbitration Act provides for the grounds for refusal of recognition or enforcement of an arbitral award as follows:
(1) The recognition or enforcement of an arbitral award, irrespective of the state in which it was made, may be refused only—
(a) at the request of the party against whom it is invoked, if that party furnishes to the High Court proof that—
i. a party to the arbitration agreement was under some incapacity; or
ii. the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication of that law, under the law of the state where the arbitral award was made;
iii. the party against whom the arbitral award is invoked was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or
iv. the arbitral award deals with a dispute not contemplated by or not falling within the terms of the reference to arbitration, or it contains decisions on matters beyond the scope of the reference to arbitration, provided that if the decisions on matters referred to arbitration can be separated from those not so referred, that part of the arbitral award which contains decisions on matters referred to arbitration may be recognised and enforced; or
v. the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties or, failing any agreement by the parties, was not in accordance with the law of the state where the arbitration took place; or
vi. the arbitral award has not yet become binding on the parties or has been set aside or suspended by a court of the state in which, or under the law of which, that arbitral award was made; or
vii. the making of the arbitral award was induced or affected by fraud, bribery, corruption or undue influence;
(b) if the High Court finds that—
i. the subject-matter of the dispute is not capable of settlement by arbitration under the law of Kenya; or
ii. the recognition or enforcement of the arbitral award would be contrary to the public policy of Kenya.
(2) If an application for the setting aside or suspension of an arbitral award has been made to a court referred to in subsection (1)(a)(vi), the High Court may, if it considers it proper, adjourn its decision and may also, on the application of the party, claiming recognition or enforcement of the arbitral award, order the other party to provide appropriate security.
18. The respondent herein has not made any request to this court under section (1)(a) of the Act, let alone demonstrating the existence of any of the grounds thereunder for refusal of recognition or enforcement of the award. Equally, this court finds that no ground exists under paragraph (b) for refusal of recognition or enforcement of the award. I therefore find that none of the grounds for refusal of recognition or enforcement of the arbitral award as set out above has been shown to exist in the present case. I am satisfied that the same meets the requirements for recognition, and enforcement of an arbitral award as set out under section 36 of the Arbitration Act.
19. I am further satisfied that the respondent had full knowledge of the delivery of the final award whose terms it is yet to fulfill. The contents of the said award have not been controverted. Further, no application has been made for the setting aside of the award under Section 35 of the Arbitration Act .
20. Consequently, it is hereby ordered that the final arbitral award dated 30th September 2024 be and is hereby recognized for enforcement as a decree of this court. The Applicant is at liberty to enforce the award as a decree of this court.
21. For the foregoing reasons, the application is allowed with no orders as to costs.
22. Orders accordingly.
Written, dated, signed, and delivered on the virtual Platform, Teams, this 9th day of September 2025.
ANDAYI W. F.
JUDGE
In the presence of:
Awuor (Ms) holding brief for Ochieng for the applicants.
N/A for the Respondent.
Carlos: Court assistant.
ANDAYI W. F.
JUDGE
'