Introduction
1. The Plaintiff/Applicant's filed the Notice of Motion dated 4th December 2025 seeking principally an order that the Commission/Finder's Fee Agreement dated 6th February 2024 be forwarded to the Directorate of Criminal Investigations (DCI) Forensic Document Examination Unit for forensic examination and the filing of a report before this Court.
2. The application was premised upon the Applicant's contention that the said Agreement was never executed by its authorised officers, that the signature attributed to its representative, Mr. Wu Haibo, is a forgery, and that the company seal appearing on the document is inauthentic. The Applicant further contended that the Agreement is unconstitutional, illegal and contrary to public policy.
3. The Applicant contends that a forensic examination is necessary to ascertain the truth regarding the authenticity of the document upon which the Defendant's claim and the resultant arbitral award are founded.
4. The application is opposed by the Defendant/Respondent through the Replying Affidavit of Dr. Peter Mwaniki and written submissions dated 26th June 2026. The Respondent contends that the issues raised in the application were conclusively determined in arbitral proceedings resulting in a Final Award dated 18th December 2025 and a Correcting Memorandum dated 7th January 2026.
5. The Responded asserted that this Court lacks jurisdiction to entertain the application and that the application constitutes a collateral attack upon a final arbitral award.
6. The Application was canvassed by way of written submissions. The Applicant filed submissions dated 15th June 2026, whilst the Respondent’s submissions are dated 26th June 2026.
Analysis and Determination
7. Having duly considered the application, affidavits, the rival submissions and authorities cited by both parties. I find the following two issues to be arising for determination are:
i. Whether this Court has jurisdiction to entertain the application notwithstanding the existence of a final arbitral award.
ii. Whether the Applicant has established a basis for an order directing forensic examination of the Finder's Fee Agreement dated 6th February 2024.
Whether this Court Has Jurisdiction
8. It is settled law that Jurisdiction is everything. Without it, a court must immediately down its tools.
9. It is common ground that the dispute between the parties was referred to arbitration pursuant to the arbitration clause contained in the Finder's Fee Agreement. It is also not disputed that an arbitral tribunal was duly constituted and subsequently rendered a Final Award on 18th December 2025, which was later corrected through a Correcting Memorandum dated 7th January 2026.
10. The Respondent, in its replying affidavit and submissions argued that this Court lacks jurisdiction since the validity of the Finder's Fee Agreement was expressly placed before the arbitral tribunal as one of the issues for determination and that the tribunal considered and conclusively rendered itself on the allegations (by the present Applicant) that the Agreement was forged, that the signatory lacked authority, and that the Agreement was tainted by illegality.
11. The Respondent submitted that the tribunal having ultimately rejected those allegations and found the Agreement valid and enforceable, this Court cannot revisit the same. The Respondent maintained that the jurisdiction of this court over an arbitral award is limited to the instances prescribed under section 35 and 37 of the Arbitration Act.
12. The Applicant, on the other hand, argued that the challenge before this Court in the present application is not directed at the merits of the award but at the very foundation of the arbitral process, namely the authenticity of the Agreement and the existence of a valid arbitration agreement. It submits that matters touching on fraud, forgery, illegality, and public policy survive the issuance of an arbitral award.
13. According to the Applicant, the present application is not to invite the Court to revisit the merits of the arbitral findings or substitute its own conclusions for those of the tribunal, but that it “invokes the Court's supervisory jurisdiction on grounds expressly recognised by statute, namely questions touching on jurisdiction, legality, enforceability, fraud and public policy.”
14. The Applicant maintained that its challenge is directed at matters that survive the issuance of the arbitral award, that is, forgery of the underlying agreement (Finder’s Fee Agreement), making it invalid and enforceable, thereby tainting the arbitral jurisdiction purportedly derived therefrom. They maintained that recognition or enforcement of the resultant Award would offend the public policy of Kenya.
15. I have carefully considered the present application. I note that the what is before me is not an application under Section 35 seeking to set aside the award, nor is it an objection within enforcement proceedings under Section 37. Rather, it is an application seeking an order that the impugned Agreement be subjected to forensic examination.
16. From the replying affidavit, I note that the Respondent has placed before the Court evidence showing that the Applicant has already invoked the statutory mechanism provided under Section 35 the Arbitration Act through separate proceedings (HCCOMMISC No. E123 of 2026) challenging the arbitral award.
17. Section 10 of the Arbitration Act provides that except as provided in the Act, no court shall intervene in matters governed by the Act. The Court of Appeal in Anne Mumbi Hinga v Victoria Njoki Gathara [2009] eKLR emphasized that the Arbitration Act is a complete code and that court intervention is restricted to the circumstances expressly provided by statute.
18. The principle underscoring the finality of an arbitral award has been reaffirmed by the Supreme Court in Nyutu Agrovet Limited v Airtel Networks Kenya Limited [2019] eKLR and in Geo Chem Middle East v Kenya Bureau of Standards, [2020] eKLR.
19. Both parties extensively cited those authorities.
20. Upon perusal of the pleadings in this matter, I note from the record that the validity of the subject Finder’s Fee Agreement was first raised before Freda Mugambi J, in (HCOS No. E615 of 2024 – Automated Entrance Systems Limited v China Railway Construction Engineering Limited) who in a ruling dated 20th December 2024 left the question to be determined by the arbitral tribunal.
21. The record further reveals that an appeal against that decision to the Court of Appeal by the present Applicant (Civil Appeal (Application No.E154 of 2025 – China Railway Construction Engineering v Automated Entrance Systems Limited & Trade Mark Africa) was dismissed on 26th September 2025, thereby upholding the decision by the learned judge.
22. It is also not contested that in the Summary of Proceedings dated 30th April 2025, the Applicant formally withdrew its challenge to the Tribunal’s jurisdiction, and an agreement reached by the parties that the question of validity of the Finder’s Fee Agreement was to be left for the determination by the Tribunal.
23. It is also evident from the record that the Applicant failed to place before the tribunal the evidence pointing to the forgery or invalidity of the agreement. The tribunal after analyzing the parties’ position (paragraphs 84-109 of the award) ultimately found the Finder’s Fee Agreement valid and enforceable.
24. From the foregoing, I am persuaded by the Respondent’s arguments that the present application seeks to reopen issues that were already placed before and determined by the arbitral tribunal.
25. The tribunal's determination on the validity and enforceability of the Agreement cannot be revisited through a standalone application for forensic examination outside the statutory framework established by the Arbitration Act.
26. To permit such a course would effectively enable a dissatisfied party to institute collateral proceedings designed to generate fresh evidence for the purpose of impeaching an arbitral award long after the arbitral process has concluded.
27. Consequently, I therefore find that this Court lacks jurisdiction, in the present proceedings, to grant the orders sought.
Whether the application is merited
28. Even assuming that the Court had jurisdiction, I would still decline the application.
29. The Applicant argued that forensic examination is necessary because the authenticity of the Agreement is disputed. It relies on authorities such as Japeth v Homeland Express Limited & 6 Others [2024] KEELC 6163 (KLR), and Sospeter Murimi Karitu v Martin Muriuki Mugo [2014] eKLR, where courts directed forensic examination of disputed documents in order to assist in arriving at the truth.
30. The Court agrees that ordinarily, where authenticity of a document is in issue during the hearing of a dispute, a court may indeed order expert examination of the document, and that forensic evidence can be an important tool in resolving disputes concerning signatures and execution of documents. However, the circumstances of the present case are materially different.
31. The material before this Court in the present application shows that the Applicant participated in the arbitral process, submitted to the tribunal's jurisdiction and that the issue concerning the validity of the Agreement was identified for determination by the tribunal. Thereafter, the Applicant failed to place before the tribunal the evidence it now seeks to obtain through the intervention of this Court.
32. The record further reveals that the tribunal at Paragraphs (84-109 of the award) considered the Applicant's allegations of forgery and lack of authority and observed that no witness testimony, expert evidence or supporting documentation had been produced to substantiate those allegations. It nevertheless evaluated the evidence presented and concluded that the Agreement was valid and enforceable.
33. Specifically, the Tribunal at Paragraph 109 of the award concluded stated that:
“The Tribunal therefore rejects the Respondent’s allegation that the Finder’s Fee Agreement is void for illegality and proceeds on the basis that it is a valid and enforceable Agreement”
34. In view of the foregoing, it is the considered view of this Court that the Applicant cannot, after failing to adduce evidence before the tribunal, seek to invoke the Court's jurisdiction in order to obtain fresh evidence directed at issues already determined by the tribunal.
35. The order sought would in effect transform this Court into an appellate forum on factual matters considered by the arbitral tribunal. Such a course is prohibited by the Arbitration Act and the jurisprudence on arbitral finality.
36. In any event, if the Applicant genuinely believes that a criminal offence of forgery has been committed, nothing prevents it from lodging an appropriate complaint with the investigative authorities. As correctly submitted by the Respondent, the statutory powers of the DCI to investigate criminal complaints do not depend upon prior authorization by a civil court.
37. Accordingly, I find that the application is not merited. The same is hereby dismissed with costs to the Respondent.
38. It is so ordered.
DATED, SIGNED, AND DELIVERED AT NAIROBI
THIS 9TH DAY OF JULY 2026
HON. MR. JUSTICE MOSES ADO
Judge of the High Court
In the Presence of:
Moses C/A
……………… for the Applicant
……………for the Respondent
1. The Plaintiff/Applicant's filed the Notice of Motion dated 4th December 2025 seeking principally an order that the Commission/Finder's Fee Agreement dated 6th February 2024 be forwarded to the Directorate of Criminal Investigations (DCI) Forensic Document Examination Unit for forensic examination and the filing of a report before this Court.
2. The application was premised upon the Applicant's contention that the said Agreement was never executed by its authorised officers, that the signature attributed to its representative, Mr. Wu Haibo, is a forgery, and that the company seal appearing on the document is inauthentic. The Applicant further contended that the Agreement is unconstitutional, illegal and contrary to public policy.
3. The Applicant contends that a forensic examination is necessary to ascertain the truth regarding the authenticity of the document upon which the Defendant's claim and the resultant arbitral award are founded.
4. The application is opposed by the Defendant/Respondent through the Replying Affidavit of Dr. Peter Mwaniki and written submissions dated 26th June 2026. The Respondent contends that the issues raised in the application were conclusively determined in arbitral proceedings resulting in a Final Award dated 18th December 2025 and a Correcting Memorandum dated 7th January 2026.
5. The Responded asserted that this Court lacks jurisdiction to entertain the application and that the application constitutes a collateral attack upon a final arbitral award.
6. The Application was canvassed by way of written submissions. The Applicant filed submissions dated 15th June 2026, whilst the Respondent’s submissions are dated 26th June 2026.
Analysis and Determination
7. Having duly considered the application, affidavits, the rival submissions and authorities cited by both parties. I find the following two issues to be arising for determination are:
i. Whether this Court has jurisdiction to entertain the application notwithstanding the existence of a final arbitral award.
ii. Whether the Applicant has established a basis for an order directing forensic examination of the Finder's Fee Agreement dated 6th February 2024.
Whether this Court Has Jurisdiction
8. It is settled law that Jurisdiction is everything. Without it, a court must immediately down its tools.
9. It is common ground that the dispute between the parties was referred to arbitration pursuant to the arbitration clause contained in the Finder's Fee Agreement. It is also not disputed that an arbitral tribunal was duly constituted and subsequently rendered a Final Award on 18th December 2025, which was later corrected through a Correcting Memorandum dated 7th January 2026.
10. The Respondent, in its replying affidavit and submissions argued that this Court lacks jurisdiction since the validity of the Finder's Fee Agreement was expressly placed before the arbitral tribunal as one of the issues for determination and that the tribunal considered and conclusively rendered itself on the allegations (by the present Applicant) that the Agreement was forged, that the signatory lacked authority, and that the Agreement was tainted by illegality.
11. The Respondent submitted that the tribunal having ultimately rejected those allegations and found the Agreement valid and enforceable, this Court cannot revisit the same. The Respondent maintained that the jurisdiction of this court over an arbitral award is limited to the instances prescribed under section 35 and 37 of the Arbitration Act.
12. The Applicant, on the other hand, argued that the challenge before this Court in the present application is not directed at the merits of the award but at the very foundation of the arbitral process, namely the authenticity of the Agreement and the existence of a valid arbitration agreement. It submits that matters touching on fraud, forgery, illegality, and public policy survive the issuance of an arbitral award.
13. According to the Applicant, the present application is not to invite the Court to revisit the merits of the arbitral findings or substitute its own conclusions for those of the tribunal, but that it “invokes the Court's supervisory jurisdiction on grounds expressly recognised by statute, namely questions touching on jurisdiction, legality, enforceability, fraud and public policy.”
14. The Applicant maintained that its challenge is directed at matters that survive the issuance of the arbitral award, that is, forgery of the underlying agreement (Finder’s Fee Agreement), making it invalid and enforceable, thereby tainting the arbitral jurisdiction purportedly derived therefrom. They maintained that recognition or enforcement of the resultant Award would offend the public policy of Kenya.
15. I have carefully considered the present application. I note that the what is before me is not an application under Section 35 seeking to set aside the award, nor is it an objection within enforcement proceedings under Section 37. Rather, it is an application seeking an order that the impugned Agreement be subjected to forensic examination.
16. From the replying affidavit, I note that the Respondent has placed before the Court evidence showing that the Applicant has already invoked the statutory mechanism provided under Section 35 the Arbitration Act through separate proceedings (HCCOMMISC No. E123 of 2026) challenging the arbitral award.
17. Section 10 of the Arbitration Act provides that except as provided in the Act, no court shall intervene in matters governed by the Act. The Court of Appeal in Anne Mumbi Hinga v Victoria Njoki Gathara [2009] eKLR emphasized that the Arbitration Act is a complete code and that court intervention is restricted to the circumstances expressly provided by statute.
18. The principle underscoring the finality of an arbitral award has been reaffirmed by the Supreme Court in Nyutu Agrovet Limited v Airtel Networks Kenya Limited [2019] eKLR and in Geo Chem Middle East v Kenya Bureau of Standards, [2020] eKLR.
19. Both parties extensively cited those authorities.
20. Upon perusal of the pleadings in this matter, I note from the record that the validity of the subject Finder’s Fee Agreement was first raised before Freda Mugambi J, in (HCOS No. E615 of 2024 – Automated Entrance Systems Limited v China Railway Construction Engineering Limited) who in a ruling dated 20th December 2024 left the question to be determined by the arbitral tribunal.
21. The record further reveals that an appeal against that decision to the Court of Appeal by the present Applicant (Civil Appeal (Application No.E154 of 2025 – China Railway Construction Engineering v Automated Entrance Systems Limited & Trade Mark Africa) was dismissed on 26th September 2025, thereby upholding the decision by the learned judge.
22. It is also not contested that in the Summary of Proceedings dated 30th April 2025, the Applicant formally withdrew its challenge to the Tribunal’s jurisdiction, and an agreement reached by the parties that the question of validity of the Finder’s Fee Agreement was to be left for the determination by the Tribunal.
23. It is also evident from the record that the Applicant failed to place before the tribunal the evidence pointing to the forgery or invalidity of the agreement. The tribunal after analyzing the parties’ position (paragraphs 84-109 of the award) ultimately found the Finder’s Fee Agreement valid and enforceable.
24. From the foregoing, I am persuaded by the Respondent’s arguments that the present application seeks to reopen issues that were already placed before and determined by the arbitral tribunal.
25. The tribunal's determination on the validity and enforceability of the Agreement cannot be revisited through a standalone application for forensic examination outside the statutory framework established by the Arbitration Act.
26. To permit such a course would effectively enable a dissatisfied party to institute collateral proceedings designed to generate fresh evidence for the purpose of impeaching an arbitral award long after the arbitral process has concluded.
27. Consequently, I therefore find that this Court lacks jurisdiction, in the present proceedings, to grant the orders sought.
Whether the application is merited
28. Even assuming that the Court had jurisdiction, I would still decline the application.
29. The Applicant argued that forensic examination is necessary because the authenticity of the Agreement is disputed. It relies on authorities such as Japeth v Homeland Express Limited & 6 Others [2024] KEELC 6163 (KLR), and Sospeter Murimi Karitu v Martin Muriuki Mugo [2014] eKLR, where courts directed forensic examination of disputed documents in order to assist in arriving at the truth.
30. The Court agrees that ordinarily, where authenticity of a document is in issue during the hearing of a dispute, a court may indeed order expert examination of the document, and that forensic evidence can be an important tool in resolving disputes concerning signatures and execution of documents. However, the circumstances of the present case are materially different.
31. The material before this Court in the present application shows that the Applicant participated in the arbitral process, submitted to the tribunal's jurisdiction and that the issue concerning the validity of the Agreement was identified for determination by the tribunal. Thereafter, the Applicant failed to place before the tribunal the evidence it now seeks to obtain through the intervention of this Court.
32. The record further reveals that the tribunal at Paragraphs (84-109 of the award) considered the Applicant's allegations of forgery and lack of authority and observed that no witness testimony, expert evidence or supporting documentation had been produced to substantiate those allegations. It nevertheless evaluated the evidence presented and concluded that the Agreement was valid and enforceable.
33. Specifically, the Tribunal at Paragraph 109 of the award concluded stated that:
“The Tribunal therefore rejects the Respondent’s allegation that the Finder’s Fee Agreement is void for illegality and proceeds on the basis that it is a valid and enforceable Agreement”
34. In view of the foregoing, it is the considered view of this Court that the Applicant cannot, after failing to adduce evidence before the tribunal, seek to invoke the Court's jurisdiction in order to obtain fresh evidence directed at issues already determined by the tribunal.
35. The order sought would in effect transform this Court into an appellate forum on factual matters considered by the arbitral tribunal. Such a course is prohibited by the Arbitration Act and the jurisprudence on arbitral finality.
36. In any event, if the Applicant genuinely believes that a criminal offence of forgery has been committed, nothing prevents it from lodging an appropriate complaint with the investigative authorities. As correctly submitted by the Respondent, the statutory powers of the DCI to investigate criminal complaints do not depend upon prior authorization by a civil court.
37. Accordingly, I find that the application is not merited. The same is hereby dismissed with costs to the Respondent.
38. It is so ordered.
DATED, SIGNED, AND DELIVERED AT NAIROBI
THIS 9TH DAY OF JULY 2026
HON. MR. JUSTICE MOSES ADO
Judge of the High Court
In the Presence of:
Moses C/A
……………… for the Applicant
……………for the Respondent