1. Commercial certainty demands the finality of dispute resolution. Litigation must have an end. For the parties herein, arbitration is the chosen vessel for commercial finality. It is constructed by the voluntary agreement of the parties. They choose it to escape the labyrinth of protracted litigation. When parties submit to the jurisdiction of an arbitral tribunal, they bargain for a binding outcome. They accept the arbitrator's decision, warts and all.
2. The Court exercises supervisory, not appellate, jurisdiction over arbitral proceedings. The mandate of the Court is strictly circumscribed by the Arbitration Act. Jurisdiction is everything. Without it, a Court has no power to make one more step. A Court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.
3. The Court is presently seized of two diametrically opposed applications. They arise out of an ongoing and deeply acrimonious arbitration. The first is a Chamber Summons. It is filed by the Applicant, Aston Design and Build Limited. It seeks the recognition and enforcement of an Interlocutory Arbitral Award. The second is a Notice of Motion. It is filed by the Respondent, Miriam Njeri Koechler. It vigorously resists enforcement. It further seeks to set aside the said Award and stay the ongoing arbitral proceedings.
4. This dispute underscores a classic construction conflict. It is marked by allegations of fundamental breach, gross overpayment, unauthorized sub-contracting, and procedural grievances. The arbitral tribunal's history is equally turbulent. The Sole Arbitrator issued an interim award. He later reviewed it. He subsequently recused himself under a cloud of bias allegations. A successor arbitrator assumed jurisdiction. She has propelled the matter toward a final hearing.
5. The Respondent now invites the Court to halt the arbitration entirely. She seeks to impeach the interim award. She further asks the Court to interrogate the locus standi of the Applicant. Conversely, the Applicant urges the Court to enforce the award. It relies on the doctrine of partial compliance and statutory dictates. The Court must navigate these turbulent waters. It must do so strictly within the confines of the Arbitration Act, the Civil Procedure Rules, and established binding jurisprudence.
Background Facts
6. The factual matrix underpinning this dispute is substantially uncontested. On 22nd November, 2022, the Applicant and the Respondent executed a Design-Build Agreement. The Respondent engaged the Applicant as the main contractor. The project was the construction of a residential home on her property. The property is known as Title Number Kiambu/Municipality Block III/146, situated in Runda, Nairobi.
7. The relationship between the parties deteriorated rapidly. A dispute arose. It concerned the settlement of payments due to subcontractors. It involved alleged departures from approved designs. It ultimately culminated in the termination of the Agreement by the Respondent. The parties failed to reach an amicable settlement. Consequently, the matter was referred to arbitration.
8. On 22nd April, 2024, Mr. Kimani Mathu was appointed as the Sole Arbitrator. The arbitral proceedings commenced. Both parties participated actively. Heavy rains in May and June 2024 caused severe flooding at the construction site in Runda. The Respondent grew anxious about the degradation of her asset. She filed a Preliminary Application on 28th May, 2024. She sought urgent interventions to protect the unfinished building.
9. The Sole Arbitrator conducted a site visit on 29th May, 2024. The parties subsequently agreed to appoint an independent quantity surveyor. They appointed Mr. Michael Mbugua of Amazon Consultants as the tribunal expert. His mandate was clear. He was to carry out a joint valuation of the works. He was to determine the precise cost of the work executed by the Applicant prior to the termination of the contract.
10. On 11th September, 2024, the tribunal expert commenced his mandate. He worked alongside the technical experts of both the Applicant and the Respondent. They conducted a joint valuation exercise on the suit property. The tribunal expert submitted an initial report on 31st October, 2024. The tribunal directed a revision to properly demarcate the works. He submitted a revised report on 27th November, 2024.
11. The revised valuation report yielded a specific figure. It concluded that the value of the work executed by the Applicant was Kshs. 16,132,648. This figure became a central point of contention. The Respondent vehemently asserted that she had already paid the Applicant a sum of Kshs. 18,139,100.
12. Amidst these interlocutory skirmishes, issues of security for costs and site access flared up. The Applicant demanded security before the Respondent could resume construction. The Respondent resisted. The Sole Arbitrator delivered an Interlocutory Award on 11th December, 2024. The Award was expressly aimed at the preservation of the asset under construction. The Sole Arbitrator ordered the Respondent to pay the Applicant Kshs. 5,000,000 as an interim valuation of work done but not paid for. He further ordered her to deposit Kshs. 4,800,000 into an escrow account. Crucially, the Award granted the Respondent permission to re-enter the property and resume construction without hindrance.
13. The Respondent was deeply aggrieved by the Interlocutory Award. She viewed it as unreasoned and contrary to the mathematical facts on record. On 30th January, 2025, she formally applied to the Sole Arbitrator. She sought a clarification and review of the Award under Section 34 of the Arbitration Act. She questioned the rationale of the Award. She questioned the character of the payment ordered. She specifically inquired whether the sum was owed, interim, or final.
14. The Sole Arbitrator convened the parties. Submissions were filed. On 04th July, 2025, the Sole Arbitrator delivered a Reviewed Interlocutory Award. The review acknowledged the interim nature of the award. It removed the requirement for the Kshs. 4,800,000 escrow deposit. However, it maintained the strict directive that the Respondent pay the Applicant Kshs. 5,000,000 by 17th July, 2025.
15. Following this reviewed decision, the Respondent altered her posture. Through her advocates, she proposed a structured payment plan via a letter dated 08th July, 2025. She offered to liquidate the Kshs. 5,000,000 in three distinct instalments. The Applicant accepted the proposal. The Respondent subsequently honoured the first two instalments. She paid a total of Kshs. 3,600,000. She then withheld the final balance of Kshs. 1,400,000.
16. The arbitral proceedings continued to degenerate. The Respondent accused the Sole Arbitrator of conflict of interest, bias, and improper management of the dispute. On 16th September, 2025, the Respondent filed a formal Notice of Challenge. She sought the recusal of the Sole Arbitrator. Mr. Kimani Mathu recused himself shortly thereafter. He did not contest the challenge.
17. The arbitral process required reconstitution. Hon. Lady Justice (Rtd.) Mary Kasango was appointed as the successor arbitrator on 15th January, 2026. The Respondent immediately pressed the new tribunal to clarify or reverse the first Interlocutory Award.
18. On 30th April, 2026, Hon. Lady Justice Kasango delivered Ruling No. 1. She declined to reverse the 11th December, 2024 Interlocutory Award. She noted that she was functus officio regarding matters already adjudicated and perfected by the former arbitrator. Hon Lady Justice Kasango subsequently delivered Ruling No. 2 on 29th May, 2026. She dismissed the Respondent's application for security for costs. She issued Order for Directions No. 5, and later No. 8, propelling the substantive hearing to proceed in August 2026.
19. It is against this protracted and bitter backdrop that the parties approach this Court. The Applicant filed the present Chamber Summons dated 3rd February, 2025. It seeks recognition of the interim Award. The Respondent filed the Notice of Motion dated 19th June, 2026. It seeks to stay the proceedings and set aside the Award entirely. The Court consolidated the applications for a singular, comprehensive determination.
The Applicant's Chamber Summons
20. The Applicant, Aston Design and Build Limited, moved the Court vide a Chamber Summons dated 3rd February, 2025. The application is firmly anchored upon Sections 1A and 1B of the Civil Procedure Act. It relies on Section 36 of the Arbitration Act, Cap 49 Laws of Kenya. It is further grounded on Order 46 Rule 18(1) of the Civil Procedure Rules of 2010, and Sections 6, 9, and 11 of the Arbitration Rules, 1997. The Applicant seeks the following prayers:
1. THAT the interlocutory arbitral award dated and delivered at
Nairobi on the 11th day of December 2024 by Mr. Kimani Mathu (Sole Arbitrator) between the parties herein be recognized, adopted, enforced as an Order of the Court.
2. THAT the Court be at liberty to make such further and other orders as it deems fit to meet the ends of justice;
3. THAT cost of this application be borne by the Respondent.
The Respondent's Notice of Motion
21. The Respondent, Miriam Njeri Koechler, mounted her counter-offensive via a Notice of Motion dated 19th June, 2026. The application is brought pursuant to Sections 7, 35, and 37 of the Arbitration Act, 1995. It also relies upon Sections 1A, 1B, and 3A of the Civil Procedure Act. The Respondent seeks the following prayers:
1. THAT this application be certified urgent and be heard in priority, service of the same in the first instance being dispensed with.
2. THAT pending the hearing and determination of this application inter partes, this Honourable Court be pleased to issue an order of stay of the arbitral proceedings between the parties presently before the Tribunal of the Hon. Justice (Rtd.) Mary Kasango, FCIArb., including the directions for the filing of issues and the holding of a pre-trial conference made by Order for Directions No. 5 dated 29th May 2026.
3. THAT pending the hearing and determination of this application inter partes, this Honourable Court be pleased to stay the Respondent's recognition and enforcement application in HCCOMMARB/E006/2025.
4. THAT this Honourable Court be pleased to set aside the First Interlocutory Award dated 11th December 2024 as reviewed on 4th July 2025, together with all proceedings, rulings and orders consequent upon it, under Section 35 of the Arbitration Act.
5. THAT in the alternative, this Honourable Court be pleased to decline to recognise and enforce the said Interlocutory Award under Section 37 of the Arbitration Act.
6. THAT this Honourable Court be pleased to declare that the Respondent's locus standi, raised by the Applicant as a threshold question at the onset of the arbitration, has never been heard or determined, and that the recognition or enforcement of an award issued in those circumstances would be contrary to natural justice and the public policy of Kenya.
7. THAT the costs of this application be provided for.
8. THAT this Honourable Court be pleased to make such further or other orders as it may deem just and expedient.
22. The Applicant’s case for recognition and enforcement is meticulously set out in the Supporting Affidavit of Andrey Lyubimov, sworn on 03rd February 2025. It is fortified by a Supplementary Affidavit sworn on 01st September, 2025, and a Replying Affidavit sworn on 01st July, 2026. Written submissions dated 17th December, 2025 are also on record.
23. The Applicant contends that the Interlocutory Award is valid, binding, and undisputed in law. The Applicant asserts that the Sole Arbitrator possessed the requisite jurisdiction to issue interim measures. These measures were essential for the preservation of the asset under construction. The Applicant relies heavily on Section 3(1) of the Arbitration Act. This section explicitly defines an "arbitral award" to include an interim arbitral award. The Applicant submits that the statutory formalities under Section 36 for enforcement have been fully satisfied.
24. The Applicant strongly deploys the doctrine of admission and estoppel. The Applicant adduces documentary evidence demonstrating that the Respondent voluntarily proposed a payment plan. This was done via a letter dated 08th July, 2025. The Respondent sought to liquidate the Kshs. 5,000,000 awarded in three instalments. To demonstrate commitment, she offered post-dated cheques, an acceleration clause, and a 12% interest penalty for default. The Respondent subsequently paid Kshs. 3,600,000. The Applicant argues that this partial compliance operates as a clear, unequivocal admission of liability under Order 13 Rule 2 of the Civil Procedure Rules.
25. In response to the application to set aside the award, the Applicant raises a formidable preliminary objection. It is grounded on the strict limitation of time. The Applicant argues that Section 35(3) of the Arbitration Act prescribes an inflexible three-month timeline for bringing an application to set aside an award. The Applicant asserts that time commenced running either on 11th December, 2024 (the date of the original award) or, at the very latest, on 04th July, 2025 (the date the request for review under Section 34 was disposed of). The Respondent filed the application on 19th June, 2026. This renders it incurably time-barred. The Applicant correctly asserts that the Arbitration Act makes no provision for the extension of time. This Court lacks the jurisdiction to enlarge the statutory window.
26. The Applicant further contends that the Respondent’s application lacks substantive merit. The Applicant vehemently denies any violation of public policy or natural justice. The Applicant maintains that the Respondent fully participated in the arbitral proceedings. She filed pleadings. She engaged technical experts. Most importantly, she wholly benefited from the very award she now seeks to impeach. The award permitted her to re-enter the construction site and resume works.
27. The Respondent’s resistance is mounted in her Supporting Affidavit and Replying Affidavit. Both were sworn by Miriam Njeri Koechler in June 2026.
28. The Respondent contends that the Interlocutory Award was unreasoned. She argues it breached the most basic tenets of natural justice. The Respondent avers that the Sole Arbitrator ordered her to pay Kshs. 5,000,000 without determining the core issue of liability. She complains that no mathematical justification was provided. The Respondent points to a glaring contradiction in the record. The independent tribunal expert valued the executed works at Kshs. 16,132,648. However, the Respondent had already paid the Applicant Kshs. 18,139,100. Ordering a further payment of Kshs. 5,000,000 in the face of an established overpayment is, she argues, irrational. It offends the public policy of Kenya.
29. On the critical issue of limitation, the Respondent argues that her application is filed within time. She advances a novel interpretation of the timeline. The Respondent contends that the true character of the Interlocutory Award remained legally ambiguous. She argues it was unclear whether it was an interim, reversible measure or a final, binding determination. This ambiguity, she claims, was only resolved when the successor arbitrator, Hon. Lady Justice Kasango, pronounced upon it on 30th April, 2026. The Respondent asserts that time under Section 35(3) began running from 30 April 2026. This makes her application of 19th June, 2026 timely. Alternatively, she submits that resisting enforcement under Section 37 is not subject to any statutory period of limitation.
30. The Respondent introduces the issue of locus standi. She avers that the National Construction Authority (herein after referred to as the “NCA”) records indicate the registered contractor for the project was "Demery Limited". This is an entity she never contracted with. The Respondent argues that she raised this issue as a preliminary threshold objection. The arbitral tribunal never heard or determined it. The Respondent contends that enforcing an award in favour of an entity operating illegally, or without standing, violates Kenyan public policy and the regulatory framework of the NCA.
31. Finally, the Respondent attempts to explain her partial payment of Kshs. 3,600,000. She categorizes it as a gesture of "good-faith compliance" made strictly under protest. She claims it was done to allow the arbitration to proceed smoothly. She alleges it was based on verbal assurances from the former arbitrator that the amount was ultimately reversible.
Issues for Determination
32. The Court has considered and evaluated the pleadings. It has scrutinized the affidavits on record. It has analysed the statutory provisions, the rival submissions of the parties and the oral highlights by Counsel. The Court frames the following three main issues for determination:
1. Whether the Respondent's application to set aside the Interlocutory Award is time-barred under Section 35(3) of the Arbitration Act, thereby stripping this Court of jurisdiction to entertain the prayers for setting aside.
2. Whether the Interlocutory Award is contrary to the public policy of Kenya, or whether there was a breach of the rules of natural justice warranting the refusal of recognition and enforcement under Section 37 of the Arbitration Act.
3. Whether the Applicant has satisfied the requirements for the recognition and enforcement of the Interlocutory Award under Section 36 of the Arbitration Act, and whether the Respondent's partial compliance constitutes a binding and enforceable admission.
Analysis
33. As earlier stated, the Court has considered the two applications jointly so as to render a single ruling. This disposes of the core issues raised by the two applications. The nature of the reliefs sought are so entwined that a single decision makes best utilisation of precious judicial time.
(i) Whether the Respondent's application to set aside the Interlocutory Award is time-barred under Section 35(3) of the Arbitration Act, thereby stripping this Court of jurisdiction to entertain the prayers for setting aside.
34. The Court must first interrogate its own jurisdiction. Jurisdiction is the lifeblood of any judicial pronouncement. A Court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. Without it, a Court has no power to make one more step. The Applicant mounts a vigorous, threshold challenge to the Respondent's application on the ground of strict statutory limitation.
35. Section 35 of the Arbitration Act provides the exclusive mechanism for recourse to the High Court against an arbitral award. The process is not open-ended. Section 35(3) dictates the rigid temporal boundaries of this recourse:
"An application for setting aside the arbitral award may not be made after 3 months have elapsed from the date on which the party making that application had received the arbitral award, or if a request had been made under section 34 from the date on which that request had been disposed of by the arbitral award."
36. The chronology of events is paramount. The Sole Arbitrator delivered the Interlocutory Award on 11th December, 2024. The Respondent, acting within her rights, invoked Section 34 of the Arbitration Act. She did so via a letter dated 30th January, 2025. She requested a clarification and review of the Award. The invocation of Section 34 effectively arrested the running of the three-month limitation period.
37. On 04th July, 2025, the Sole Arbitrator delivered the Reviewed Interlocutory Award. At this precise juncture, the request under Section 34 was explicitly and conclusively disposed of by the arbitral tribunal. Therefore, by operation of law, the statutory three-month clock commenced running on 04th July, 2025. The statutory window for filing an application to set aside the Award irrevocably closed on 04th October, 2025.
38. The record shows that the Respondent filed the Notice of Motion seeking to set aside the Award on 19th June, 2026. This filing occurred more than eight months after the statutory deadline had lapsed.
39. The Respondent attempts to cure this fatal defect. She argues that the true character of the Award was only clarified by the successor arbitrator, Hon. Lady Justice Kasango, in her ruling of 30th April, 2026. The Respondent posits that time should run from that date. This argument is legally untenable and fundamentally misconceived. Hon. Lady Justice Kasango’s ruling was not an arbitral award disposing of a Section 34 request. It was a procedural ruling confirming that she lacked jurisdiction. She was functus officio regarding matters already adjudicated and perfected by the former arbitrator. A subsequent arbitrator's refusal to review a predecessor's award cannot miraculously resurrect a statutory limitation period that has long since expired.
40. The Arbitration Act is a self-contained code. It operates as a strict liability regime regarding timelines. Unlike the Civil Procedure Act, the Arbitration Act does not contain a general provision empowering the Court to enlarge time. The High Court's jurisdiction under Section 35 is strictly gated. As properly guided by the jurisprudence of this Court, including the pronouncements by Mwita J. (as he then was) in Nairobi City County v Kenya Commercial Bank Limited [2022] KEHC 73 (KLR), the Court does not have jurisdiction to extend the time limited for filing an application for setting aside the award. To imply such a provision permitting the Court to extend time would amount to re-writing the Arbitration Act. It would defeat the core arbitral principle of finality.
41. The Respondent slept on her rights. She failed to approach the seat of justice through the correct gate and formula within the 90 days allowed.
42. The Court finds that the Respondent’s application to set aside the Interlocutory Award is hopelessly time-barred. Consequently, prayers 4 and 6 of the Respondent's Notice of Motion, which seek to set aside the Award and impeach the locus standi underlying it, are struck out for want of jurisdiction.
(ii) Whether the Interlocutory Award is contrary to the public policy of Kenya, or whether there was a breach of the rules of natural justice warranting the refusal of recognition and enforcement under Section 37 of the Arbitration Act.
43. While the application to set aside the Award under Section 35 is time-barred, the Respondent has also raised objections under Section 37 of the Arbitration Act. She deploys Section 37 as a shield against the Applicant's enforcement proceedings.
44. Section 37(1)(b)(ii) of the Arbitration Act permits the High Court to refuse the recognition or enforcement of an arbitral award if it finds that the recognition or enforcement would be contrary to the public policy of Kenya. The Respondent contends that the Award is contrary to public policy. She asserts it lacks reasons. She asserts it orders payment despite an established overpayment. She asserts it was issued in favour of an entity with questionable locus standi due to NCA registration anomalies.
45. The Supreme Court of Kenya has definitively addressed the limits of judicial intervention in arbitral awards. In Nyutu Agrovet Limited v Airtel Networks Kenya Limited;Chartered Institute of Arbitrators-Kenya Branch [2019] KESC 11 (KLR), the Supreme Court affirmed the principle of finality. The Court noted that Courts must resist the temptation to sit as appellate bodies over arbitral tribunals. The High Court is confined to the narrow parameters of Sections 35 and 37. The public policy of Kenya leans heavily towards the finality of arbitral awards. Parties to an arbitration must learn to accept an award, warts and all.
46. What constitutes the "public policy of Kenya"? The guiding compass remains the authoritative formulation by Ringera J. (as he then was) in Christ for All Nations v Apollo Insurance Co Ltd [2002] 2 EA 366. An award is contrary to public policy if it is:
(i) Inconsistent with the Constitution or other laws of Kenya;
(ii) Inimical to the national interest of Kenya; or
(iii) Contrary to justice and morality.
47. The Respondent’s primary grievance is mathematical and factual. The tribunal expert valued the works at Kshs. 16,132,648. The Respondent paid Kshs. 18,139,100. Yet, the arbitrator ordered a further payment of Kshs. 5,000,000. The Respondent views this as an absurdity lacking reasons.
48. On its face, the order appears mathematically incongruous. However, errors of fact, errors of law, or mixed errors of fact and law committed by an arbitrator do not equate to a violation of public policy. As emphatically stated in Christ for All Nations, a party who strongly believes the arbitrator was wrong in law cannot invoke public policy as a backdoor appeal.
49. An arbitral tribunal has the authority to interpret the agreement and review the evidence. It can come to its own conclusion. Even if that conclusion is wrong, or if this Court may take a different view of the findings, the Court cannot intervene. The Reviewed Award of 04th July, 2025 lists the considerations made by the arbitrator. These included the interim payment certificate of Kshs. 6.3 million, the respondent's payments, the expert valuations, and the chances of success of the respective claims. The arbitrator weighed these competing factors. He arrived at an interim figure of Kshs. 5 million for the preservation of the asset. The Court will not dissect the mathematical logic of the arbitrator. Disagreement with the arbitrator's evaluation of the evidence does not cross the high threshold of a public policy violation.
50. Regarding locus standi and the NCA registration, the Court notes that the parties executed a valid Design-Build Agreement on 22nd November, 2022. The Respondent willingly contracted with the Applicant. The Respondent filed a Defence and a Counterclaim against the Applicant in the arbitral proceedings. By prosecuting a Counterclaim, the Respondent implicitly recognized the legal capacity of the Applicant to sue and be sued under the contract. The collateral issue of whether a third party (Demery Limited) appeared on the site signboard is an evidentiary matter for the arbitral tribunal during the substantive hearing. It does not render the interim enforcement of the contract fundamentally illegal or contrary to the public policy of Kenya.
51. Furthermore, the claim of a breach of natural justice is entirely contradicted by the record. The Respondent participated in the site visits. She engaged the joint expert. She filed applications. She sought a review under Section 34. She filed submissions which were considered in the Reviewed Award. The Respondent was heard. The Court finds no violation of natural justice or public policy. The Respondent’s reliance on Section 37 fails entirely.
(iii) Whether the Applicant has satisfied the requirements for the recognition and enforcement of the Interlocutory Award under Section 36 of the Arbitration Act, and whether the Respondent's partial compliance constitutes a binding and enforceable admission.
52. The Court now turns to the Applicant's Chamber Summons. The Applicant seeks recognition and enforcement of the Interlocutory Award under Section 36 of the Arbitration Act.
53. The Respondent argued that an "interlocutory" or "interim" award is not final and therefore cannot be enforced as a decree. This proposition is fundamentally flawed in law. Section 3(1) of the Arbitration Act expressly defines an "arbitral award" to include an "interim arbitral award".
54. This Court is bound by the clear statutory text and persuasive precedent. In Sapra v Africare Limited [2023] KEHC 2327 (KLR), Majanja J. eloquently resolved this exact contention:
"This means that any award whether interim or otherwise is an award and may be enforced as it is an award within the provisions of section 36(1) of the Act. Further, section 36 does not qualify what kind of award that may or may not be enforced... Just like the court may issue a preliminary decree or an interlocutory order, the Act does not foreclose the issuing of interim awards that may be enforced as the arbitral proceedings continue. Taking such an approach would undermine the complementary function of the court to assist arbitral tribunal in the course of proceedings."
55. The Applicant has strictly complied with the formal requirements of Section 36. It has furnished the certified copies of the Agreement and the Award. The Interlocutory Award is valid and ripe for enforcement.
56. Furthermore, the Applicant advances a compelling and fatal argument against the Respondent. It is grounded in the doctrine of admission. Order 13 Rule 2 of the Civil Procedure Rules empowers the Court to give judgment at any stage of a suit where an admission of facts has been made, either on pleadings or otherwise.
57. The jurisprudence on admissions is crystallized in the Court of Appeal decision of Choitram v Nazari [1984] KLR 327. Madan J.A. stated with clarity:
"For the purpose of order XII rule 6 [now Order 13 Rule 2], admissions can be express or implied either on the pleadings or otherwise, eg in correspondence. Admissions have to be plain and obvious, as plain as a pikestaff and clearly readable because they may result in judgment being entered."
58. The evidentiary record before this Court is incontrovertible. Following the Reviewed Award of 04th July, 2025, the Respondent’s advocates wrote a letter dated 08th July, 2025. They proposed a structured payment plan. The letter explicitly stated:
"Our client is committed to complying with the Tribunal’s directive and making full payment of the awarded sum."
59. To secure this promise, the Respondent offered post-dated cheques, an acceleration clause, a
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2. The Court exercises supervisory, not appellate, jurisdiction over arbitral proceedings. The mandate of the Court is strictly circumscribed by the Arbitration Act. Jurisdiction is everything. Without it, a Court has no power to make one more step. A Court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.
3. The Court is presently seized of two diametrically opposed applications. They arise out of an ongoing and deeply acrimonious arbitration. The first is a Chamber Summons. It is filed by the Applicant, Aston Design and Build Limited. It seeks the recognition and enforcement of an Interlocutory Arbitral Award. The second is a Notice of Motion. It is filed by the Respondent, Miriam Njeri Koechler. It vigorously resists enforcement. It further seeks to set aside the said Award and stay the ongoing arbitral proceedings.
4. This dispute underscores a classic construction conflict. It is marked by allegations of fundamental breach, gross overpayment, unauthorized sub-contracting, and procedural grievances. The arbitral tribunal's history is equally turbulent. The Sole Arbitrator issued an interim award. He later reviewed it. He subsequently recused himself under a cloud of bias allegations. A successor arbitrator assumed jurisdiction. She has propelled the matter toward a final hearing.
5. The Respondent now invites the Court to halt the arbitration entirely. She seeks to impeach the interim award. She further asks the Court to interrogate the locus standi of the Applicant. Conversely, the Applicant urges the Court to enforce the award. It relies on the doctrine of partial compliance and statutory dictates. The Court must navigate these turbulent waters. It must do so strictly within the confines of the Arbitration Act, the Civil Procedure Rules, and established binding jurisprudence.
Background Facts
6. The factual matrix underpinning this dispute is substantially uncontested. On 22nd November, 2022, the Applicant and the Respondent executed a Design-Build Agreement. The Respondent engaged the Applicant as the main contractor. The project was the construction of a residential home on her property. The property is known as Title Number Kiambu/Municipality Block III/146, situated in Runda, Nairobi.
7. The relationship between the parties deteriorated rapidly. A dispute arose. It concerned the settlement of payments due to subcontractors. It involved alleged departures from approved designs. It ultimately culminated in the termination of the Agreement by the Respondent. The parties failed to reach an amicable settlement. Consequently, the matter was referred to arbitration.
8. On 22nd April, 2024, Mr. Kimani Mathu was appointed as the Sole Arbitrator. The arbitral proceedings commenced. Both parties participated actively. Heavy rains in May and June 2024 caused severe flooding at the construction site in Runda. The Respondent grew anxious about the degradation of her asset. She filed a Preliminary Application on 28th May, 2024. She sought urgent interventions to protect the unfinished building.
9. The Sole Arbitrator conducted a site visit on 29th May, 2024. The parties subsequently agreed to appoint an independent quantity surveyor. They appointed Mr. Michael Mbugua of Amazon Consultants as the tribunal expert. His mandate was clear. He was to carry out a joint valuation of the works. He was to determine the precise cost of the work executed by the Applicant prior to the termination of the contract.
10. On 11th September, 2024, the tribunal expert commenced his mandate. He worked alongside the technical experts of both the Applicant and the Respondent. They conducted a joint valuation exercise on the suit property. The tribunal expert submitted an initial report on 31st October, 2024. The tribunal directed a revision to properly demarcate the works. He submitted a revised report on 27th November, 2024.
11. The revised valuation report yielded a specific figure. It concluded that the value of the work executed by the Applicant was Kshs. 16,132,648. This figure became a central point of contention. The Respondent vehemently asserted that she had already paid the Applicant a sum of Kshs. 18,139,100.
12. Amidst these interlocutory skirmishes, issues of security for costs and site access flared up. The Applicant demanded security before the Respondent could resume construction. The Respondent resisted. The Sole Arbitrator delivered an Interlocutory Award on 11th December, 2024. The Award was expressly aimed at the preservation of the asset under construction. The Sole Arbitrator ordered the Respondent to pay the Applicant Kshs. 5,000,000 as an interim valuation of work done but not paid for. He further ordered her to deposit Kshs. 4,800,000 into an escrow account. Crucially, the Award granted the Respondent permission to re-enter the property and resume construction without hindrance.
13. The Respondent was deeply aggrieved by the Interlocutory Award. She viewed it as unreasoned and contrary to the mathematical facts on record. On 30th January, 2025, she formally applied to the Sole Arbitrator. She sought a clarification and review of the Award under Section 34 of the Arbitration Act. She questioned the rationale of the Award. She questioned the character of the payment ordered. She specifically inquired whether the sum was owed, interim, or final.
14. The Sole Arbitrator convened the parties. Submissions were filed. On 04th July, 2025, the Sole Arbitrator delivered a Reviewed Interlocutory Award. The review acknowledged the interim nature of the award. It removed the requirement for the Kshs. 4,800,000 escrow deposit. However, it maintained the strict directive that the Respondent pay the Applicant Kshs. 5,000,000 by 17th July, 2025.
15. Following this reviewed decision, the Respondent altered her posture. Through her advocates, she proposed a structured payment plan via a letter dated 08th July, 2025. She offered to liquidate the Kshs. 5,000,000 in three distinct instalments. The Applicant accepted the proposal. The Respondent subsequently honoured the first two instalments. She paid a total of Kshs. 3,600,000. She then withheld the final balance of Kshs. 1,400,000.
16. The arbitral proceedings continued to degenerate. The Respondent accused the Sole Arbitrator of conflict of interest, bias, and improper management of the dispute. On 16th September, 2025, the Respondent filed a formal Notice of Challenge. She sought the recusal of the Sole Arbitrator. Mr. Kimani Mathu recused himself shortly thereafter. He did not contest the challenge.
17. The arbitral process required reconstitution. Hon. Lady Justice (Rtd.) Mary Kasango was appointed as the successor arbitrator on 15th January, 2026. The Respondent immediately pressed the new tribunal to clarify or reverse the first Interlocutory Award.
18. On 30th April, 2026, Hon. Lady Justice Kasango delivered Ruling No. 1. She declined to reverse the 11th December, 2024 Interlocutory Award. She noted that she was functus officio regarding matters already adjudicated and perfected by the former arbitrator. Hon Lady Justice Kasango subsequently delivered Ruling No. 2 on 29th May, 2026. She dismissed the Respondent's application for security for costs. She issued Order for Directions No. 5, and later No. 8, propelling the substantive hearing to proceed in August 2026.
19. It is against this protracted and bitter backdrop that the parties approach this Court. The Applicant filed the present Chamber Summons dated 3rd February, 2025. It seeks recognition of the interim Award. The Respondent filed the Notice of Motion dated 19th June, 2026. It seeks to stay the proceedings and set aside the Award entirely. The Court consolidated the applications for a singular, comprehensive determination.
The Applicant's Chamber Summons
20. The Applicant, Aston Design and Build Limited, moved the Court vide a Chamber Summons dated 3rd February, 2025. The application is firmly anchored upon Sections 1A and 1B of the Civil Procedure Act. It relies on Section 36 of the Arbitration Act, Cap 49 Laws of Kenya. It is further grounded on Order 46 Rule 18(1) of the Civil Procedure Rules of 2010, and Sections 6, 9, and 11 of the Arbitration Rules, 1997. The Applicant seeks the following prayers:
1. THAT the interlocutory arbitral award dated and delivered at
Nairobi on the 11th day of December 2024 by Mr. Kimani Mathu (Sole Arbitrator) between the parties herein be recognized, adopted, enforced as an Order of the Court.
2. THAT the Court be at liberty to make such further and other orders as it deems fit to meet the ends of justice;
3. THAT cost of this application be borne by the Respondent.
The Respondent's Notice of Motion
21. The Respondent, Miriam Njeri Koechler, mounted her counter-offensive via a Notice of Motion dated 19th June, 2026. The application is brought pursuant to Sections 7, 35, and 37 of the Arbitration Act, 1995. It also relies upon Sections 1A, 1B, and 3A of the Civil Procedure Act. The Respondent seeks the following prayers:
1. THAT this application be certified urgent and be heard in priority, service of the same in the first instance being dispensed with.
2. THAT pending the hearing and determination of this application inter partes, this Honourable Court be pleased to issue an order of stay of the arbitral proceedings between the parties presently before the Tribunal of the Hon. Justice (Rtd.) Mary Kasango, FCIArb., including the directions for the filing of issues and the holding of a pre-trial conference made by Order for Directions No. 5 dated 29th May 2026.
3. THAT pending the hearing and determination of this application inter partes, this Honourable Court be pleased to stay the Respondent's recognition and enforcement application in HCCOMMARB/E006/2025.
4. THAT this Honourable Court be pleased to set aside the First Interlocutory Award dated 11th December 2024 as reviewed on 4th July 2025, together with all proceedings, rulings and orders consequent upon it, under Section 35 of the Arbitration Act.
5. THAT in the alternative, this Honourable Court be pleased to decline to recognise and enforce the said Interlocutory Award under Section 37 of the Arbitration Act.
6. THAT this Honourable Court be pleased to declare that the Respondent's locus standi, raised by the Applicant as a threshold question at the onset of the arbitration, has never been heard or determined, and that the recognition or enforcement of an award issued in those circumstances would be contrary to natural justice and the public policy of Kenya.
7. THAT the costs of this application be provided for.
8. THAT this Honourable Court be pleased to make such further or other orders as it may deem just and expedient.
22. The Applicant’s case for recognition and enforcement is meticulously set out in the Supporting Affidavit of Andrey Lyubimov, sworn on 03rd February 2025. It is fortified by a Supplementary Affidavit sworn on 01st September, 2025, and a Replying Affidavit sworn on 01st July, 2026. Written submissions dated 17th December, 2025 are also on record.
23. The Applicant contends that the Interlocutory Award is valid, binding, and undisputed in law. The Applicant asserts that the Sole Arbitrator possessed the requisite jurisdiction to issue interim measures. These measures were essential for the preservation of the asset under construction. The Applicant relies heavily on Section 3(1) of the Arbitration Act. This section explicitly defines an "arbitral award" to include an interim arbitral award. The Applicant submits that the statutory formalities under Section 36 for enforcement have been fully satisfied.
24. The Applicant strongly deploys the doctrine of admission and estoppel. The Applicant adduces documentary evidence demonstrating that the Respondent voluntarily proposed a payment plan. This was done via a letter dated 08th July, 2025. The Respondent sought to liquidate the Kshs. 5,000,000 awarded in three instalments. To demonstrate commitment, she offered post-dated cheques, an acceleration clause, and a 12% interest penalty for default. The Respondent subsequently paid Kshs. 3,600,000. The Applicant argues that this partial compliance operates as a clear, unequivocal admission of liability under Order 13 Rule 2 of the Civil Procedure Rules.
25. In response to the application to set aside the award, the Applicant raises a formidable preliminary objection. It is grounded on the strict limitation of time. The Applicant argues that Section 35(3) of the Arbitration Act prescribes an inflexible three-month timeline for bringing an application to set aside an award. The Applicant asserts that time commenced running either on 11th December, 2024 (the date of the original award) or, at the very latest, on 04th July, 2025 (the date the request for review under Section 34 was disposed of). The Respondent filed the application on 19th June, 2026. This renders it incurably time-barred. The Applicant correctly asserts that the Arbitration Act makes no provision for the extension of time. This Court lacks the jurisdiction to enlarge the statutory window.
26. The Applicant further contends that the Respondent’s application lacks substantive merit. The Applicant vehemently denies any violation of public policy or natural justice. The Applicant maintains that the Respondent fully participated in the arbitral proceedings. She filed pleadings. She engaged technical experts. Most importantly, she wholly benefited from the very award she now seeks to impeach. The award permitted her to re-enter the construction site and resume works.
27. The Respondent’s resistance is mounted in her Supporting Affidavit and Replying Affidavit. Both were sworn by Miriam Njeri Koechler in June 2026.
28. The Respondent contends that the Interlocutory Award was unreasoned. She argues it breached the most basic tenets of natural justice. The Respondent avers that the Sole Arbitrator ordered her to pay Kshs. 5,000,000 without determining the core issue of liability. She complains that no mathematical justification was provided. The Respondent points to a glaring contradiction in the record. The independent tribunal expert valued the executed works at Kshs. 16,132,648. However, the Respondent had already paid the Applicant Kshs. 18,139,100. Ordering a further payment of Kshs. 5,000,000 in the face of an established overpayment is, she argues, irrational. It offends the public policy of Kenya.
29. On the critical issue of limitation, the Respondent argues that her application is filed within time. She advances a novel interpretation of the timeline. The Respondent contends that the true character of the Interlocutory Award remained legally ambiguous. She argues it was unclear whether it was an interim, reversible measure or a final, binding determination. This ambiguity, she claims, was only resolved when the successor arbitrator, Hon. Lady Justice Kasango, pronounced upon it on 30th April, 2026. The Respondent asserts that time under Section 35(3) began running from 30 April 2026. This makes her application of 19th June, 2026 timely. Alternatively, she submits that resisting enforcement under Section 37 is not subject to any statutory period of limitation.
30. The Respondent introduces the issue of locus standi. She avers that the National Construction Authority (herein after referred to as the “NCA”) records indicate the registered contractor for the project was "Demery Limited". This is an entity she never contracted with. The Respondent argues that she raised this issue as a preliminary threshold objection. The arbitral tribunal never heard or determined it. The Respondent contends that enforcing an award in favour of an entity operating illegally, or without standing, violates Kenyan public policy and the regulatory framework of the NCA.
31. Finally, the Respondent attempts to explain her partial payment of Kshs. 3,600,000. She categorizes it as a gesture of "good-faith compliance" made strictly under protest. She claims it was done to allow the arbitration to proceed smoothly. She alleges it was based on verbal assurances from the former arbitrator that the amount was ultimately reversible.
Issues for Determination
32. The Court has considered and evaluated the pleadings. It has scrutinized the affidavits on record. It has analysed the statutory provisions, the rival submissions of the parties and the oral highlights by Counsel. The Court frames the following three main issues for determination:
1. Whether the Respondent's application to set aside the Interlocutory Award is time-barred under Section 35(3) of the Arbitration Act, thereby stripping this Court of jurisdiction to entertain the prayers for setting aside.
2. Whether the Interlocutory Award is contrary to the public policy of Kenya, or whether there was a breach of the rules of natural justice warranting the refusal of recognition and enforcement under Section 37 of the Arbitration Act.
3. Whether the Applicant has satisfied the requirements for the recognition and enforcement of the Interlocutory Award under Section 36 of the Arbitration Act, and whether the Respondent's partial compliance constitutes a binding and enforceable admission.
Analysis
33. As earlier stated, the Court has considered the two applications jointly so as to render a single ruling. This disposes of the core issues raised by the two applications. The nature of the reliefs sought are so entwined that a single decision makes best utilisation of precious judicial time.
(i) Whether the Respondent's application to set aside the Interlocutory Award is time-barred under Section 35(3) of the Arbitration Act, thereby stripping this Court of jurisdiction to entertain the prayers for setting aside.
34. The Court must first interrogate its own jurisdiction. Jurisdiction is the lifeblood of any judicial pronouncement. A Court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. Without it, a Court has no power to make one more step. The Applicant mounts a vigorous, threshold challenge to the Respondent's application on the ground of strict statutory limitation.
35. Section 35 of the Arbitration Act provides the exclusive mechanism for recourse to the High Court against an arbitral award. The process is not open-ended. Section 35(3) dictates the rigid temporal boundaries of this recourse:
"An application for setting aside the arbitral award may not be made after 3 months have elapsed from the date on which the party making that application had received the arbitral award, or if a request had been made under section 34 from the date on which that request had been disposed of by the arbitral award."
36. The chronology of events is paramount. The Sole Arbitrator delivered the Interlocutory Award on 11th December, 2024. The Respondent, acting within her rights, invoked Section 34 of the Arbitration Act. She did so via a letter dated 30th January, 2025. She requested a clarification and review of the Award. The invocation of Section 34 effectively arrested the running of the three-month limitation period.
37. On 04th July, 2025, the Sole Arbitrator delivered the Reviewed Interlocutory Award. At this precise juncture, the request under Section 34 was explicitly and conclusively disposed of by the arbitral tribunal. Therefore, by operation of law, the statutory three-month clock commenced running on 04th July, 2025. The statutory window for filing an application to set aside the Award irrevocably closed on 04th October, 2025.
38. The record shows that the Respondent filed the Notice of Motion seeking to set aside the Award on 19th June, 2026. This filing occurred more than eight months after the statutory deadline had lapsed.
39. The Respondent attempts to cure this fatal defect. She argues that the true character of the Award was only clarified by the successor arbitrator, Hon. Lady Justice Kasango, in her ruling of 30th April, 2026. The Respondent posits that time should run from that date. This argument is legally untenable and fundamentally misconceived. Hon. Lady Justice Kasango’s ruling was not an arbitral award disposing of a Section 34 request. It was a procedural ruling confirming that she lacked jurisdiction. She was functus officio regarding matters already adjudicated and perfected by the former arbitrator. A subsequent arbitrator's refusal to review a predecessor's award cannot miraculously resurrect a statutory limitation period that has long since expired.
40. The Arbitration Act is a self-contained code. It operates as a strict liability regime regarding timelines. Unlike the Civil Procedure Act, the Arbitration Act does not contain a general provision empowering the Court to enlarge time. The High Court's jurisdiction under Section 35 is strictly gated. As properly guided by the jurisprudence of this Court, including the pronouncements by Mwita J. (as he then was) in Nairobi City County v Kenya Commercial Bank Limited [2022] KEHC 73 (KLR), the Court does not have jurisdiction to extend the time limited for filing an application for setting aside the award. To imply such a provision permitting the Court to extend time would amount to re-writing the Arbitration Act. It would defeat the core arbitral principle of finality.
41. The Respondent slept on her rights. She failed to approach the seat of justice through the correct gate and formula within the 90 days allowed.
42. The Court finds that the Respondent’s application to set aside the Interlocutory Award is hopelessly time-barred. Consequently, prayers 4 and 6 of the Respondent's Notice of Motion, which seek to set aside the Award and impeach the locus standi underlying it, are struck out for want of jurisdiction.
(ii) Whether the Interlocutory Award is contrary to the public policy of Kenya, or whether there was a breach of the rules of natural justice warranting the refusal of recognition and enforcement under Section 37 of the Arbitration Act.
43. While the application to set aside the Award under Section 35 is time-barred, the Respondent has also raised objections under Section 37 of the Arbitration Act. She deploys Section 37 as a shield against the Applicant's enforcement proceedings.
44. Section 37(1)(b)(ii) of the Arbitration Act permits the High Court to refuse the recognition or enforcement of an arbitral award if it finds that the recognition or enforcement would be contrary to the public policy of Kenya. The Respondent contends that the Award is contrary to public policy. She asserts it lacks reasons. She asserts it orders payment despite an established overpayment. She asserts it was issued in favour of an entity with questionable locus standi due to NCA registration anomalies.
45. The Supreme Court of Kenya has definitively addressed the limits of judicial intervention in arbitral awards. In Nyutu Agrovet Limited v Airtel Networks Kenya Limited;Chartered Institute of Arbitrators-Kenya Branch [2019] KESC 11 (KLR), the Supreme Court affirmed the principle of finality. The Court noted that Courts must resist the temptation to sit as appellate bodies over arbitral tribunals. The High Court is confined to the narrow parameters of Sections 35 and 37. The public policy of Kenya leans heavily towards the finality of arbitral awards. Parties to an arbitration must learn to accept an award, warts and all.
46. What constitutes the "public policy of Kenya"? The guiding compass remains the authoritative formulation by Ringera J. (as he then was) in Christ for All Nations v Apollo Insurance Co Ltd [2002] 2 EA 366. An award is contrary to public policy if it is:
(i) Inconsistent with the Constitution or other laws of Kenya;
(ii) Inimical to the national interest of Kenya; or
(iii) Contrary to justice and morality.
47. The Respondent’s primary grievance is mathematical and factual. The tribunal expert valued the works at Kshs. 16,132,648. The Respondent paid Kshs. 18,139,100. Yet, the arbitrator ordered a further payment of Kshs. 5,000,000. The Respondent views this as an absurdity lacking reasons.
48. On its face, the order appears mathematically incongruous. However, errors of fact, errors of law, or mixed errors of fact and law committed by an arbitrator do not equate to a violation of public policy. As emphatically stated in Christ for All Nations, a party who strongly believes the arbitrator was wrong in law cannot invoke public policy as a backdoor appeal.
49. An arbitral tribunal has the authority to interpret the agreement and review the evidence. It can come to its own conclusion. Even if that conclusion is wrong, or if this Court may take a different view of the findings, the Court cannot intervene. The Reviewed Award of 04th July, 2025 lists the considerations made by the arbitrator. These included the interim payment certificate of Kshs. 6.3 million, the respondent's payments, the expert valuations, and the chances of success of the respective claims. The arbitrator weighed these competing factors. He arrived at an interim figure of Kshs. 5 million for the preservation of the asset. The Court will not dissect the mathematical logic of the arbitrator. Disagreement with the arbitrator's evaluation of the evidence does not cross the high threshold of a public policy violation.
50. Regarding locus standi and the NCA registration, the Court notes that the parties executed a valid Design-Build Agreement on 22nd November, 2022. The Respondent willingly contracted with the Applicant. The Respondent filed a Defence and a Counterclaim against the Applicant in the arbitral proceedings. By prosecuting a Counterclaim, the Respondent implicitly recognized the legal capacity of the Applicant to sue and be sued under the contract. The collateral issue of whether a third party (Demery Limited) appeared on the site signboard is an evidentiary matter for the arbitral tribunal during the substantive hearing. It does not render the interim enforcement of the contract fundamentally illegal or contrary to the public policy of Kenya.
51. Furthermore, the claim of a breach of natural justice is entirely contradicted by the record. The Respondent participated in the site visits. She engaged the joint expert. She filed applications. She sought a review under Section 34. She filed submissions which were considered in the Reviewed Award. The Respondent was heard. The Court finds no violation of natural justice or public policy. The Respondent’s reliance on Section 37 fails entirely.
(iii) Whether the Applicant has satisfied the requirements for the recognition and enforcement of the Interlocutory Award under Section 36 of the Arbitration Act, and whether the Respondent's partial compliance constitutes a binding and enforceable admission.
52. The Court now turns to the Applicant's Chamber Summons. The Applicant seeks recognition and enforcement of the Interlocutory Award under Section 36 of the Arbitration Act.
53. The Respondent argued that an "interlocutory" or "interim" award is not final and therefore cannot be enforced as a decree. This proposition is fundamentally flawed in law. Section 3(1) of the Arbitration Act expressly defines an "arbitral award" to include an "interim arbitral award".
54. This Court is bound by the clear statutory text and persuasive precedent. In Sapra v Africare Limited [2023] KEHC 2327 (KLR), Majanja J. eloquently resolved this exact contention:
"This means that any award whether interim or otherwise is an award and may be enforced as it is an award within the provisions of section 36(1) of the Act. Further, section 36 does not qualify what kind of award that may or may not be enforced... Just like the court may issue a preliminary decree or an interlocutory order, the Act does not foreclose the issuing of interim awards that may be enforced as the arbitral proceedings continue. Taking such an approach would undermine the complementary function of the court to assist arbitral tribunal in the course of proceedings."
55. The Applicant has strictly complied with the formal requirements of Section 36. It has furnished the certified copies of the Agreement and the Award. The Interlocutory Award is valid and ripe for enforcement.
56. Furthermore, the Applicant advances a compelling and fatal argument against the Respondent. It is grounded in the doctrine of admission. Order 13 Rule 2 of the Civil Procedure Rules empowers the Court to give judgment at any stage of a suit where an admission of facts has been made, either on pleadings or otherwise.
57. The jurisprudence on admissions is crystallized in the Court of Appeal decision of Choitram v Nazari [1984] KLR 327. Madan J.A. stated with clarity:
"For the purpose of order XII rule 6 [now Order 13 Rule 2], admissions can be express or implied either on the pleadings or otherwise, eg in correspondence. Admissions have to be plain and obvious, as plain as a pikestaff and clearly readable because they may result in judgment being entered."
58. The evidentiary record before this Court is incontrovertible. Following the Reviewed Award of 04th July, 2025, the Respondent’s advocates wrote a letter dated 08th July, 2025. They proposed a structured payment plan. The letter explicitly stated:
"Our client is committed to complying with the Tribunal’s directive and making full payment of the awarded sum."
59. To secure this promise, the Respondent offered post-dated cheques, an acceleration clause, a
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