1. Before this Court is the Applicant’s Chamber Summons application dated 19th February 2025 brought under Section 36(1) and (3) of the Arbitration Act, Rules 6 and 9 of the Arbitration Rules, and Sections 1A and 3A of the Civil Procedure Act. The Applicant seeks orders that the Final Arbitral Award dated 3rd December 2024 be recognized and enforced as a judgment and decree of this Court, together with costs and interest.
2. The dispute arises from a Settlement Agreement dated 16th September 2020, executed between the Applicant and the Respondent, where the Respondent agreed to offset the outstanding amounts owed to the Applicant under a contract for the supply and installation of equipment for a television station.
3. Under Clause 9 of the said Agreement, the parties agreed to resolve their dispute through arbitration after the Respondent allegedly breached the terms of the Agreement by failing to adhere to the agreed repayment plan.
4. An Arbitrator, Mr. Samba Muthui (FCIArb), was duly appointed on 12th January 2023 by the Chartered Institute of Arbitrators. The parties executed the Arbitrator’s Agreement on 23rd March 2023, thereby formally commencing the arbitral proceedings.
5. Ms. Odari deponed that the arbitral proceedings were conducted in accordance with the law. That the Applicant complied fully with all procedural directions. However, the Respondent, despite having participated in the initial processes, defaulted on several procedural obligations, even after being granted time extensions by the Tribunal.
6. Ms. Odari deponed that on 17th January 2024, the Arbitrator notified the parties that the Final Award was ready for collection, subject to settlement of arbitration fees, and the Applicant promptly paid its share of the fees. The Respondent, however, did not settle its dues despite repeated reminders. Consequently, the Arbitrator released the Award to the Applicant
7. The Arbitrator, Mr. Samba Muthui (FCIArb) in the Award, found in favour of the Applicant and issued the following orders: -
“i. I Order and Direct that, Respondent shall pay the Claimant the sum of USD 43,308.94 being the outstanding sum of the Contract Price within 21 days from the date of publishing this Award. Failing payment this amount shall attract simple interest of 15% per annum. The amount shall be subject to the current dollar rate prescribed by the Central Bank of Kenya (CBK) as at the time of payment.
ii. I Order and Direct that the Respondent shall pay the Claimant KES 258,830.30(Two hundred and Fifty-Eighty Thousand, Eight Hundred and Thirty Shillings and Thirty cents only), this is the Amount the Claimant has paid to lift the Award. The Respondent should pay this amount within 21 days of demand for payment from the Claimant. Failing settlement of the entire sum, this amount shall attract simple interest at 18% per annum.
iii. I Order and Direct that, Respondent shall pay the Claimant NIL DAMAGES as the amount of damages to be paid was not indicated in the prayer made by the Claimant.
iv. I Order and Direct that the Respondent shall bear the Costs of Reference for this Arbitration, these being the legal costs of the Claimant.”
8. The Applicant contends that the Respondent failed to pay the amount awarded, and therefore, it now seeks to have the arbitral award recognized, in order to have the Award enforced as a decree of this court as against the Respondent.
Submissions
9. The Application proceeded by way of written submissions. The Applicant filed its submissions dated 7th April 2025. The Respondent did not file any submissions.
Analysis and determination:
10. The Court having perused the application and the submissions filed by the Applicant, taking cognizance of the applicable law and especially sections 36 and 37 of the Arbitration Act, is of the considered view that the only issue for determination in the application is the question of whether the Arbitration award dated 3rd December 2024 is proper for recognition and enforcement by Court.
11. Under Section 36(1) of the Arbitration Act, an arbitral award shall be recognized as binding and enforced by the High Court upon application in writing. Enforcement is mandatory unless the opposing party demonstrates one or more grounds under Section 37 of the Act.
12. Section 36 of the Arbitration Act sets out the legal parameters governing the enforcement and adoption of an arbitral award in the following terms:
“36. Recognition and enforcement of awards
(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 shall 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.
13. In Samura Engineering Limited vs Don-Wood Co Ltd [2014] eKLR it was held: -
“Of course, section 36(1) of the Act requires an application in writing for recognition and enforcement of an award to be made. But the application is subject to sections 36 and 37 of the Act, and I should add, to the Constitution. Section 36(3) of the Act makes it mandatory that the party applying for recognition and enforcement of the award should file: 1) the duly authenticated original award or a duly certified copy of it; and 2) the original arbitration agreement or a certified copy of it. Doubtless, the award must be filed…”
14. From the application and the affidavit in support thereof, the Court notes that the Applicant has annexed all documents required under Section 36(2) of the Arbitration Act, including:
a. A certified copy of the Final Arbitral Award dated 3rd December 2024;
b. A certified copy of the Arbitration Agreement;
c. The Arbitrator’s Agreement;
d. Proof of service on the Respondent.
15. The further Court notes that the Respondent was served with the application and all relevant documents, as well as the Court’s directions issued on 21st March 2025. An affidavit of service dated 25th March 2025 has been filed. However, the Respondent failed to file any response or submissions.
16. Consequently, in the present case, there is no opposition filed against the application, neither there is any pending application to set aside the Award under Section 35 of the Act. The Applicant has therefore established compliance with the statutory requirements for enforcement.
17. Additionally, none of the grounds under Section 37 of the Arbitration Act have been invoked or proved. The Award is not shown to violate public policy, the arbitration agreement is valid, the Respondent participated in the process, and the matters decided were within the scope of the arbitral reference.
18. I agree with the holding in the case of Tanzania National Roads Agency v Kundan Singh Construction Ltd [2013] eKLR, cited by the Applicant, that where the Court held that recognition and enforcement of arbitral awards is automatic unless refused under Section 37.
19. There being no legal impediment established to bar the enforcement of the Final Arbitral Award, I find successful, the application dated 19th February 2025 for adoption and recognition of the Final Arbitral Award issued by Samba Muthui (FCIArb), on 3rd December 2024.
20. Accordingly, the said Arbitral Award is hereby adopted and recognized as a judgment and decree of this court.
21. The Applicant shall have the costs of this Application, which is hereby assessed at Kshs. 20,000/-.
22. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
19TH DAY OF JUNE, 2025
ADO MOSES
JUDGE
In the presence of:
Waguma …………...for Applicant
Achola ……………h/b for Odhaimbo fror Respondent
Moses……….C/ A
2. The dispute arises from a Settlement Agreement dated 16th September 2020, executed between the Applicant and the Respondent, where the Respondent agreed to offset the outstanding amounts owed to the Applicant under a contract for the supply and installation of equipment for a television station.
3. Under Clause 9 of the said Agreement, the parties agreed to resolve their dispute through arbitration after the Respondent allegedly breached the terms of the Agreement by failing to adhere to the agreed repayment plan.
4. An Arbitrator, Mr. Samba Muthui (FCIArb), was duly appointed on 12th January 2023 by the Chartered Institute of Arbitrators. The parties executed the Arbitrator’s Agreement on 23rd March 2023, thereby formally commencing the arbitral proceedings.
5. Ms. Odari deponed that the arbitral proceedings were conducted in accordance with the law. That the Applicant complied fully with all procedural directions. However, the Respondent, despite having participated in the initial processes, defaulted on several procedural obligations, even after being granted time extensions by the Tribunal.
6. Ms. Odari deponed that on 17th January 2024, the Arbitrator notified the parties that the Final Award was ready for collection, subject to settlement of arbitration fees, and the Applicant promptly paid its share of the fees. The Respondent, however, did not settle its dues despite repeated reminders. Consequently, the Arbitrator released the Award to the Applicant
7. The Arbitrator, Mr. Samba Muthui (FCIArb) in the Award, found in favour of the Applicant and issued the following orders: -
“i. I Order and Direct that, Respondent shall pay the Claimant the sum of USD 43,308.94 being the outstanding sum of the Contract Price within 21 days from the date of publishing this Award. Failing payment this amount shall attract simple interest of 15% per annum. The amount shall be subject to the current dollar rate prescribed by the Central Bank of Kenya (CBK) as at the time of payment.
ii. I Order and Direct that the Respondent shall pay the Claimant KES 258,830.30(Two hundred and Fifty-Eighty Thousand, Eight Hundred and Thirty Shillings and Thirty cents only), this is the Amount the Claimant has paid to lift the Award. The Respondent should pay this amount within 21 days of demand for payment from the Claimant. Failing settlement of the entire sum, this amount shall attract simple interest at 18% per annum.
iii. I Order and Direct that, Respondent shall pay the Claimant NIL DAMAGES as the amount of damages to be paid was not indicated in the prayer made by the Claimant.
iv. I Order and Direct that the Respondent shall bear the Costs of Reference for this Arbitration, these being the legal costs of the Claimant.”
8. The Applicant contends that the Respondent failed to pay the amount awarded, and therefore, it now seeks to have the arbitral award recognized, in order to have the Award enforced as a decree of this court as against the Respondent.
Submissions
9. The Application proceeded by way of written submissions. The Applicant filed its submissions dated 7th April 2025. The Respondent did not file any submissions.
Analysis and determination:
10. The Court having perused the application and the submissions filed by the Applicant, taking cognizance of the applicable law and especially sections 36 and 37 of the Arbitration Act, is of the considered view that the only issue for determination in the application is the question of whether the Arbitration award dated 3rd December 2024 is proper for recognition and enforcement by Court.
11. Under Section 36(1) of the Arbitration Act, an arbitral award shall be recognized as binding and enforced by the High Court upon application in writing. Enforcement is mandatory unless the opposing party demonstrates one or more grounds under Section 37 of the Act.
12. Section 36 of the Arbitration Act sets out the legal parameters governing the enforcement and adoption of an arbitral award in the following terms:
“36. Recognition and enforcement of awards
(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 shall 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.
13. In Samura Engineering Limited vs Don-Wood Co Ltd [2014] eKLR it was held: -
“Of course, section 36(1) of the Act requires an application in writing for recognition and enforcement of an award to be made. But the application is subject to sections 36 and 37 of the Act, and I should add, to the Constitution. Section 36(3) of the Act makes it mandatory that the party applying for recognition and enforcement of the award should file: 1) the duly authenticated original award or a duly certified copy of it; and 2) the original arbitration agreement or a certified copy of it. Doubtless, the award must be filed…”
14. From the application and the affidavit in support thereof, the Court notes that the Applicant has annexed all documents required under Section 36(2) of the Arbitration Act, including:
a. A certified copy of the Final Arbitral Award dated 3rd December 2024;
b. A certified copy of the Arbitration Agreement;
c. The Arbitrator’s Agreement;
d. Proof of service on the Respondent.
15. The further Court notes that the Respondent was served with the application and all relevant documents, as well as the Court’s directions issued on 21st March 2025. An affidavit of service dated 25th March 2025 has been filed. However, the Respondent failed to file any response or submissions.
16. Consequently, in the present case, there is no opposition filed against the application, neither there is any pending application to set aside the Award under Section 35 of the Act. The Applicant has therefore established compliance with the statutory requirements for enforcement.
17. Additionally, none of the grounds under Section 37 of the Arbitration Act have been invoked or proved. The Award is not shown to violate public policy, the arbitration agreement is valid, the Respondent participated in the process, and the matters decided were within the scope of the arbitral reference.
18. I agree with the holding in the case of Tanzania National Roads Agency v Kundan Singh Construction Ltd [2013] eKLR, cited by the Applicant, that where the Court held that recognition and enforcement of arbitral awards is automatic unless refused under Section 37.
19. There being no legal impediment established to bar the enforcement of the Final Arbitral Award, I find successful, the application dated 19th February 2025 for adoption and recognition of the Final Arbitral Award issued by Samba Muthui (FCIArb), on 3rd December 2024.
20. Accordingly, the said Arbitral Award is hereby adopted and recognized as a judgment and decree of this court.
21. The Applicant shall have the costs of this Application, which is hereby assessed at Kshs. 20,000/-.
22. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
19TH DAY OF JUNE, 2025
ADO MOSES
JUDGE
In the presence of:
Waguma …………...for Applicant
Achola ……………h/b for Odhaimbo fror Respondent
Moses……….C/ A