Skip to content
JudgmentCounty Government of Kisumu VS CORETECH SYSTEMS AND SOLUTIONS LTD4 min read

County Government of Kisumu VS CORETECH SYSTEMS AND SOLUTIONS LTD

High Court at Kisumu High Court · · M.S.Shariff

  1. The applicant’s Notice of Motion dated 9th July, 2023 seeks;
    1. That pending the hearing and determination of this application, the court be pleased to stay recognition and or enforcement of the arbitral award dated 17th April, 2023.
    2. The court be pleased to set aside the arbitral award dated 17th April, 2023 issued by Mr. Calvin Nyachoti C. Arb in so far as the same seeks to dispense with the rules of evidence in finding that the respondent provided a performance bond and proceeding to award the balance of the contractual sum.
    3. The court be pleased to grant any further orders as it may deem appropriate in the circumstances including remitting the said award dated 17th April, 2023 for corrective action on the impugned portion of the award as purports to dismiss the counterclaim dated 22nd June, 2022.
    4. Costs of the application be provided for.
  2. The application is supported by the affidavit of Edris Nicholas Omondi, the applicant’s county attorney who depones that the parties herein entered into contract for the installation of ERP vide contract number CGK/CIT/ERP/2016-2017 wherein it was agreed that the respondent shall furnish the applicant with a performance security for 5% of the contractual amount for a period exceeding 30 days after the expiry of the validity of the order.
  3. That the respondent declared a dispute after the applicant halted operations upon discovering contractual breaches in the procurement process by the former administration. Thereafter, the respondent unilaterally appointed Mr. Calvin Nyachoti as the sole arbitrator to determine the dispute which the applicant agreed to. The respondent filed an served its memorandum of claim, written submissions and pleadings.
  4. That before the arbitrator, the respondent’s claim was that it was entitled to the balance of the contractual amount.
  5. He depones that the arbitrator determined that the issues for determination were whether; there was a valid contract and secondly whether there was a breach of contract. That after hearing, the arbitrator dismissed the applicant’s counterclaim and awarded the respondent Kshs 119,106,549 and Kshs 170,000/- in special damages.
  6. That the arbitrator’s decision was arrived at without consideration of the evidence on record, that the issue of performance bond was a major issue which the respondent had failed to hounour by delivering a copy thereof and goes to the root of the matter therefore. That the arbitrator was biased in the manner he handled the evidence or lack thereof. That the decision by the arbitrator is in conflict with public policy as it amounted to unjust enrichment of the respondent.
  7. The respondent filed a replying affidavit in opposition to the application sworn by Tobias Otieno who depones inter alia that the application has been overtaken by events since the court had since allowed the application on 25th September, 2023. That since the arbitration award had been adopted, there is nothing that the court could set aside. That since the respondent’s application dated 10th august, 2023 for reason that no reply had been filed, the instant application has been overtaken by events for intents and purposes.

Analysis and determination.

  1. I have carefully perused the 2 applications herein. I note that the applicant filed an application dated 9th July, 2023 to which the respondent filed a replying affidavit and an application dated 10th August, 2023.
  2. The prayers sought in the applicant’s application is as stated above while the respondent’s application sought recognition of the arbitral award.
  3. I also note that this matter came up on 25th August, 2023 when the respondent’s application dated 10th August, 2023 was allowed. More so, the court noted that the Act puts a cap of 3 months from the date of issue of the award to the date of filing the instant application. the applicant’s counsel despite the court pointing out the fact sought time to amend its application but up to the time of writing this ruling, none had been brought forth.
  4. To begin with, Section 35(3) of the Arbitration Act stipulates;

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.

  1. In the instant case, the application was filed on 9th July, 2023 and the award was given on 17th April, 2023. In the circumstances, the application dated 9th July, 2024 was filed within time.
  2. The next issue is whether the applicant is entitled to the orders sought.
  3. I have perused through the record and find that the respondent’s application dated 10th august, 2023 praying for the adoption of the was allowed on 25th September, 2023. The applicant filed an application dated 13th October, 2023 seeking to the same orders as the application dated 9th July, 2023. No directions have been taken on the said application.
  4. The above being the case, I do find that the application dated 9th July, 2023 is overtaken by events because the respondent’s application dated 10th August, 2023 had been allowed. The applicant didn’t take steps to have the order allowing that application vacated and or set aside. The application for 13th October, 2023 does not help either because it does not seeks setting aside of the orders already given by the court. The application dated 13th October, 2023 was filed late in the day when the order recognizing the award had been made.
  5. The recognition of arbitral award is provided for by Section 36(1) of the Arbitration Act which states;

(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.

  1. In the instant application, I do note and find that the award having been adopted by the court by allowing the application seeking its recognition, the instant application dated 9th July, 2023 is hereby dismissed for being devoid of merit. Each party shall bear its own costs.

Delivered, Dated, and Signed at Kisumu this 27th day of August 2024


    County Government of Kisumu VS CORETECH SYSTEMS AND SOLUTIONS LTD County Government of Kisumu VS CORETECH SYSTEMS AND SOLUTIONS LTD