Background and Introduction
1. For determination is the Chamber Summons application dated 19th February 2025. The application seeks to set aside the final award published on 20th November 2024 by the arbitral Tribunal comprising Angeline Welsh, Thomas Kendra, and Chiann Bao together with all consequential decrees and orders arising therefrom. In addition, the application prays that the Addendum Award dated 17th December 2024 be set aside to the extent that it imposes liability upon the 2nd applicant for legal costs in the sum of USD 91,201.99 and arbitral costs in the sum of GBP 51,918.30.
2. The application is supported by the affidavits of Edwin Harold Dayan Dande, sworn on 19th February 2025 and 20th January 2026. In the said affidavits, Mr. Dande sets out the background of the dispute and avers that the Tribunal erred in awarding costs to the respondent in the sum of USD 88,542,113.90, while further misattributing a concession to the applicants. It is the applicants’ contention that the Tribunal’s reliance on such erroneous attribution of fact materially influenced its decision. They argue that enforcement of the award in circumstances where justice has not been seen to be done would occasion a miscarriage of justice and offend public policy.
3. With respect to the Addendum Award, the applicants contend that the addendum dated 17th December 2024, insofar as it apportions costs to the 2nd applicant, is inconsistent with paragraph 207 of the principal award. It is their case that the Tribunal exceeded its mandate by addressing matters outside the terms of reference agreed upon by the parties.
4. The applicants further contend that enforcement of the award would prejudice competing claims of equal priority, including those of bona fide homeowners, contractor fees, management fees, and legal fees. They submit that such enforcement would permit the respondent to pursue its claims to the exclusion of other legitimate claims, thereby depriving third parties of their rightful entitlements. In their view, enforcement of the award in these circumstances would amount to a travesty of justice and stand contrary to public policy.
5. The application is opposed through a Replying Affidavit sworn by Maarit Hannula on 30th July 2025. The respondent avers that during the arbitral proceedings, the applicants were duly represented by counsel, namely Mali Advocates LLP, that they voluntarily participated in the proceedings, presented their claims, responses, and witnesses, and at no time raised objection to the process until after the issuance of the Final Award.
6. The respondent contends that the applicants cannot now seek to reopen or reargue the merits of the dispute under the guise of challenging enforcement before this Honourable Court. Such an attempt, it is argued, amounts to an impermissible collateral attack on the award, contrary to the principle of finality embodied in the Arbitration Act and the New York Convention.
7. The respondent further submits that public policy under Section 35(2)(b)(ii) of the Arbitration Act cannot be invoked merely to ventilate dissatisfaction with an unfavorable award. In their view, the applicants have failed to demonstrate in what manner the award offends the public policy of Kenya. It is the respondent’s case that the application fails to meet the strict statutory threshold prescribed under Section 35(2) of the Arbitration Act for setting aside an arbitral award.
Analysis and Determination
8. I have additionally considered the written submissions filed by the parties in support of their respective positions. The Court’s discretion in applications for setting aside of arbitral awards is narrowly circumscribed, and refusal of enforcement can only be justified where one or more of the specific grounds under Section 35(2) are proved.
9. I note that the applicants have mounted an extensive challenge to the Tribunal’s merit findings, questioning the factual determinations made therein. Jurisprudence is well settled that the right under section 35 of the Act does not extend to questioning the merits of the case and that the arbitrator remains as all times the master of fact. This position was affirmed by the Court of Appeal in Thaara Limited v WS Insight (K) Limited & another [2024] KECA 1464 (KLR).
10. Likewise, this Court (Majanja, J) in Milicon’s Limited v National Commission for Science, Technology & Innovation & another [2023] KEHC 24515 (KLR) stated that:
“The arbitral tribunal remains that master of facts and it is irrelevant whether the court considers those findings of fact to be right or wrong. It also does not matter how obvious a mistake by the arbitrator on issues of fact might be, or what the scale of the financial consequences of the mistake of fact might be as parties who submit their disputes to arbitration bind themselves by agreement to honour the arbitrators’ award on the facts”.
11. For these reasons, I decline any invitation by the applicants to interrogate the arbitrator’s factual findings and shall confine myself to the grounds within section 35(2) of the Act. It is, however, appropriate to comment on the first ground advanced by the applicants, namely that the award ought to be set aside insofar as it apportions costs to the 2nd respondent, on the basis that the Tribunal lacked jurisdiction to make such an order. The governing provision is Section 32B(1) of the Act, which vests the arbitral tribunal with authority, unless otherwise agreed by the parties, to determine and apportion the costs and expenses of the arbitration, including the legal and other expenses of the parties, the fees and expenses of the tribunal, and any other expenses incidental thereto.
12. If the applicants were dissatisfied with the award on costs, and considered the same to be erroneous or contradictory to the principal award, the proper recourse would have been under Section 34 of the Act, which provides for correction, interpretation, or issuance of an additional award. Strictly speaking, for this Court to vary the award of costs would amount to re-opening the merits of the arbitral award, which is not one of the grounds contemplated under Section 35(2) for setting aside an award.
13. The applicants’ reliance on the ongoing insolvency proceedings as a basis for setting aside the arbitral award is, in my view, equally misplaced. This Court has already pronounced itself on the place of arbitral awards within the context of liquidation proceedings (see Misc. Appl. No. E030 of 2023; Cytonn Investments Management Plc v Margaret Mary Njunguna and Misc. Appl. No. E083 of 2024; China National Aero Technology International Engineering Corporation v Cytonn Integrated Projects).
14. I reiterate that insolvency proceedings do not constitute a valid ground for refusing recognition under the Arbitration Act. An arbitral award may be enforced by a successful party as a creditor, subject to the applicable insolvency framework. The contention that enforcement would prejudice other creditors is a matter to be addressed within the insolvency process itself, and not a basis upon which this Court may decline recognition.
15. The determination in Misc. Appl. No. E060 of 2024; Job O. Ikwawe and Eunice C. A. Owiti v Cytonn Integrated Project LLP applies with equal force to the present case. This Court held as follows:
“It must be emphasized that the liquidator has no jurisdiction to recognize arbitral awards. That power lies exclusively with this Court and is a judicial function, distinct from the administrative role of the liquidator in verifying and ranking claims within the insolvency process.
As to the argument that recognition of the award will diminish the estate available to creditors, I have already addressed this issue in the above decisions. Recognition of an arbitral award does not confer any undue advantage upon the award-holder, nor does it interfere with the rights of secured or unsecured creditors. It merely affirms the existence of a valid claim, which will then be subjected to the insolvency framework alongside other claims. The estate remains preserved, and the rights of other creditors are not prejudiced by the recognition of the award”.
16. On the allegation that the award offends public policy, I am guided by the settled jurisprudence of our courts, particularly Christ for All Nations v Apollo Insurance Co. Ltd [2002] EA 366, in which the Court emphasized that the public policy exception under Section 35(2)(b) of the Arbitration Act must be narrowly construed. It is not sufficient for a party to allege hardship or inconvenience; rather, they must demonstrate that enforcement of the award would violate fundamental notions of justice, morality, or fairness in a manner so egregious as to shock the conscience of the Court.
17. In the present case, the applicants have not discharged this burden. The award was rendered by a duly constituted arbitral tribunal, pursuant to a process freely agreed upon by the parties. The respondent participated fully in the proceedings and has not impugned the award through the proper statutory mechanisms. Accordingly, I find no basis upon which to hold that enforcement of the award would contravene public policy.
Disposition
18. Accordingly, and for the reasons herein, the application dated 19th February 2025 is dismissed with costs to the respondent.
DATED, SIGNED AND DELIVERED IN NAIROBI
THIS 6th DAY OF MAY 2026
F. MUGAMBI
JUDGE
1. For determination is the Chamber Summons application dated 19th February 2025. The application seeks to set aside the final award published on 20th November 2024 by the arbitral Tribunal comprising Angeline Welsh, Thomas Kendra, and Chiann Bao together with all consequential decrees and orders arising therefrom. In addition, the application prays that the Addendum Award dated 17th December 2024 be set aside to the extent that it imposes liability upon the 2nd applicant for legal costs in the sum of USD 91,201.99 and arbitral costs in the sum of GBP 51,918.30.
2. The application is supported by the affidavits of Edwin Harold Dayan Dande, sworn on 19th February 2025 and 20th January 2026. In the said affidavits, Mr. Dande sets out the background of the dispute and avers that the Tribunal erred in awarding costs to the respondent in the sum of USD 88,542,113.90, while further misattributing a concession to the applicants. It is the applicants’ contention that the Tribunal’s reliance on such erroneous attribution of fact materially influenced its decision. They argue that enforcement of the award in circumstances where justice has not been seen to be done would occasion a miscarriage of justice and offend public policy.
3. With respect to the Addendum Award, the applicants contend that the addendum dated 17th December 2024, insofar as it apportions costs to the 2nd applicant, is inconsistent with paragraph 207 of the principal award. It is their case that the Tribunal exceeded its mandate by addressing matters outside the terms of reference agreed upon by the parties.
4. The applicants further contend that enforcement of the award would prejudice competing claims of equal priority, including those of bona fide homeowners, contractor fees, management fees, and legal fees. They submit that such enforcement would permit the respondent to pursue its claims to the exclusion of other legitimate claims, thereby depriving third parties of their rightful entitlements. In their view, enforcement of the award in these circumstances would amount to a travesty of justice and stand contrary to public policy.
5. The application is opposed through a Replying Affidavit sworn by Maarit Hannula on 30th July 2025. The respondent avers that during the arbitral proceedings, the applicants were duly represented by counsel, namely Mali Advocates LLP, that they voluntarily participated in the proceedings, presented their claims, responses, and witnesses, and at no time raised objection to the process until after the issuance of the Final Award.
6. The respondent contends that the applicants cannot now seek to reopen or reargue the merits of the dispute under the guise of challenging enforcement before this Honourable Court. Such an attempt, it is argued, amounts to an impermissible collateral attack on the award, contrary to the principle of finality embodied in the Arbitration Act and the New York Convention.
7. The respondent further submits that public policy under Section 35(2)(b)(ii) of the Arbitration Act cannot be invoked merely to ventilate dissatisfaction with an unfavorable award. In their view, the applicants have failed to demonstrate in what manner the award offends the public policy of Kenya. It is the respondent’s case that the application fails to meet the strict statutory threshold prescribed under Section 35(2) of the Arbitration Act for setting aside an arbitral award.
Analysis and Determination
8. I have additionally considered the written submissions filed by the parties in support of their respective positions. The Court’s discretion in applications for setting aside of arbitral awards is narrowly circumscribed, and refusal of enforcement can only be justified where one or more of the specific grounds under Section 35(2) are proved.
9. I note that the applicants have mounted an extensive challenge to the Tribunal’s merit findings, questioning the factual determinations made therein. Jurisprudence is well settled that the right under section 35 of the Act does not extend to questioning the merits of the case and that the arbitrator remains as all times the master of fact. This position was affirmed by the Court of Appeal in Thaara Limited v WS Insight (K) Limited & another [2024] KECA 1464 (KLR).
10. Likewise, this Court (Majanja, J) in Milicon’s Limited v National Commission for Science, Technology & Innovation & another [2023] KEHC 24515 (KLR) stated that:
“The arbitral tribunal remains that master of facts and it is irrelevant whether the court considers those findings of fact to be right or wrong. It also does not matter how obvious a mistake by the arbitrator on issues of fact might be, or what the scale of the financial consequences of the mistake of fact might be as parties who submit their disputes to arbitration bind themselves by agreement to honour the arbitrators’ award on the facts”.
11. For these reasons, I decline any invitation by the applicants to interrogate the arbitrator’s factual findings and shall confine myself to the grounds within section 35(2) of the Act. It is, however, appropriate to comment on the first ground advanced by the applicants, namely that the award ought to be set aside insofar as it apportions costs to the 2nd respondent, on the basis that the Tribunal lacked jurisdiction to make such an order. The governing provision is Section 32B(1) of the Act, which vests the arbitral tribunal with authority, unless otherwise agreed by the parties, to determine and apportion the costs and expenses of the arbitration, including the legal and other expenses of the parties, the fees and expenses of the tribunal, and any other expenses incidental thereto.
12. If the applicants were dissatisfied with the award on costs, and considered the same to be erroneous or contradictory to the principal award, the proper recourse would have been under Section 34 of the Act, which provides for correction, interpretation, or issuance of an additional award. Strictly speaking, for this Court to vary the award of costs would amount to re-opening the merits of the arbitral award, which is not one of the grounds contemplated under Section 35(2) for setting aside an award.
13. The applicants’ reliance on the ongoing insolvency proceedings as a basis for setting aside the arbitral award is, in my view, equally misplaced. This Court has already pronounced itself on the place of arbitral awards within the context of liquidation proceedings (see Misc. Appl. No. E030 of 2023; Cytonn Investments Management Plc v Margaret Mary Njunguna and Misc. Appl. No. E083 of 2024; China National Aero Technology International Engineering Corporation v Cytonn Integrated Projects).
14. I reiterate that insolvency proceedings do not constitute a valid ground for refusing recognition under the Arbitration Act. An arbitral award may be enforced by a successful party as a creditor, subject to the applicable insolvency framework. The contention that enforcement would prejudice other creditors is a matter to be addressed within the insolvency process itself, and not a basis upon which this Court may decline recognition.
15. The determination in Misc. Appl. No. E060 of 2024; Job O. Ikwawe and Eunice C. A. Owiti v Cytonn Integrated Project LLP applies with equal force to the present case. This Court held as follows:
“It must be emphasized that the liquidator has no jurisdiction to recognize arbitral awards. That power lies exclusively with this Court and is a judicial function, distinct from the administrative role of the liquidator in verifying and ranking claims within the insolvency process.
As to the argument that recognition of the award will diminish the estate available to creditors, I have already addressed this issue in the above decisions. Recognition of an arbitral award does not confer any undue advantage upon the award-holder, nor does it interfere with the rights of secured or unsecured creditors. It merely affirms the existence of a valid claim, which will then be subjected to the insolvency framework alongside other claims. The estate remains preserved, and the rights of other creditors are not prejudiced by the recognition of the award”.
16. On the allegation that the award offends public policy, I am guided by the settled jurisprudence of our courts, particularly Christ for All Nations v Apollo Insurance Co. Ltd [2002] EA 366, in which the Court emphasized that the public policy exception under Section 35(2)(b) of the Arbitration Act must be narrowly construed. It is not sufficient for a party to allege hardship or inconvenience; rather, they must demonstrate that enforcement of the award would violate fundamental notions of justice, morality, or fairness in a manner so egregious as to shock the conscience of the Court.
17. In the present case, the applicants have not discharged this burden. The award was rendered by a duly constituted arbitral tribunal, pursuant to a process freely agreed upon by the parties. The respondent participated fully in the proceedings and has not impugned the award through the proper statutory mechanisms. Accordingly, I find no basis upon which to hold that enforcement of the award would contravene public policy.
Disposition
18. Accordingly, and for the reasons herein, the application dated 19th February 2025 is dismissed with costs to the respondent.
DATED, SIGNED AND DELIVERED IN NAIROBI
THIS 6th DAY OF MAY 2026
F. MUGAMBI
JUDGE