Introduction and Background
1. This Ruling relates to the preliminary objection dated 13th May 2025 raised by the Respondents. They argue that the Applicant, being a foreign juridical entity, has failed to comply with the mandatory statutory requirements under sections 974, 975, and 985 of the Companies Act 2015. Consequently, the Applicant lacks the legal capacity to sue or be sued and is without the requisite locus standi to institute or sustain the current proceedings. On this basis, the Respondents contend that the entire suit and application are fatally defective and should be struck out with costs at the outset.
Analysis and Determination
2. I have considered the preliminary objection and the submissions of the parties in support and opposition thereof
3. The objection centers on whether the Applicant, a company incorporated in Mauritius, has locus standi to institute the present suit. It is my observation that while Sections 974, 975, and 985 of the Companies Act prescribe the procedure for registration of foreign companies intending to carry on business in Kenya, these provisions should not be confused with the separate and distinct question of locus standi.
4. Locus standi, as defined in Matemu v Trusted Society of Human Rights Alliance & 5 others [2014] KESC 6 (KLR), refers to the right of a party to bring an action or to be heard in a given forum. It requires demonstration of sufficient interest in the subject matter, either through direct impact of the impugned action or a legal or contractual relationship entitling the party to relief. Thus, locus standi is concerned with whether a claimant has a genuine stake in the matter before the Court, not whether it is registered locally to conduct business. I do reiterate my earlier holding in Superon Schweisstechnik India Ltd v Oxychem Africa Limited; Registrar of Trademarks (Interested Party) [2025] KEHC 8298 (KLR) in this regard.
5. In the present case, the Applicant’s claim arises from enforcement of an arbitral award under Section 36 of the Arbitration Act, which expressly allows recognition and enforcement of both domestic and international awards. There is no statutory requirement that a foreign award creditor must be registered in Kenya to seek enforcement.
6. Further, the spirit of access to justice so deeply entrenched under Articles 48, 50(1), and 22(1) of the Constitution supports the right of a foreign company to sue in Kenya where it seeks to enforce a legal right. Accordingly, the objection on locus standi fails.
7. On the procedural objections, I acknowledge that the Arbitration Rules expressly require applications relating to arbitral awards to be brought by way of Chamber Summons. Nonetheless, I am guided by Article 159 of the Constitution, which enjoins courts to administer justice without undue regard to procedural technicalities.
8. The jurisprudence of the Court of Appeal, particularly in Trust Bank Limited v Amalo Company Limited Civil Appeal No. 215 of 2000 [2002] 2 KLR 627; [2003] 1 EA 350, and Central Bank of Kenya v Uhuru Highway Development Ltd & Others Civil Appeal No. 75 of 1998, reinforces this principle by emphasizing that procedural lapses which do not occasion prejudice to the parties should not be elevated into fatal defects.
9. In the present case, although the Applicant proceeded by Notice of Motion rather than Chamber Summons, the Respondents were duly served and afforded an opportunity to respond. No prejudice has been demonstrated, and the irregularity does not impede the Court’s jurisdiction or the fair determination of the matter.
10. The Respondents also argued that the application before the Court ought to have been filed as a separate miscellaneous cause rather than within the existing suit. The practice in this area remains unsettled whereby sometimes parties file distinct applications for recognition or setting aside of arbitral awards, and other times they proceed within the original suit. I find guidance in Rule 3(2) of the Arbitration Rules. This provision allows subsequent applications connected to arbitration to be filed within the same cause.
11. I do note that although practice has evolved to permit both approaches, no prejudice has been shown to result from the Applicant’s choice of procedure. The Respondents were duly served and afforded an opportunity to respond, and the matter has been properly placed before the Court. Accordingly, the objection lacks merit, as the form of filing does not affect jurisdiction or fairness, and as such I will proceed to consider the application on its merits.
DATED, SIGNED AND DELIVERED IN NAIROBI
THIS 28th DAY OF JANUARY 2026.
F. MUGAMBI
JUDGE
Delivered in the presence of:
Ms Buluma holding brief for Mr Miller for the applicant
Ms Koile for the 2nd respondent
1. This Ruling relates to the preliminary objection dated 13th May 2025 raised by the Respondents. They argue that the Applicant, being a foreign juridical entity, has failed to comply with the mandatory statutory requirements under sections 974, 975, and 985 of the Companies Act 2015. Consequently, the Applicant lacks the legal capacity to sue or be sued and is without the requisite locus standi to institute or sustain the current proceedings. On this basis, the Respondents contend that the entire suit and application are fatally defective and should be struck out with costs at the outset.
Analysis and Determination
2. I have considered the preliminary objection and the submissions of the parties in support and opposition thereof
3. The objection centers on whether the Applicant, a company incorporated in Mauritius, has locus standi to institute the present suit. It is my observation that while Sections 974, 975, and 985 of the Companies Act prescribe the procedure for registration of foreign companies intending to carry on business in Kenya, these provisions should not be confused with the separate and distinct question of locus standi.
4. Locus standi, as defined in Matemu v Trusted Society of Human Rights Alliance & 5 others [2014] KESC 6 (KLR), refers to the right of a party to bring an action or to be heard in a given forum. It requires demonstration of sufficient interest in the subject matter, either through direct impact of the impugned action or a legal or contractual relationship entitling the party to relief. Thus, locus standi is concerned with whether a claimant has a genuine stake in the matter before the Court, not whether it is registered locally to conduct business. I do reiterate my earlier holding in Superon Schweisstechnik India Ltd v Oxychem Africa Limited; Registrar of Trademarks (Interested Party) [2025] KEHC 8298 (KLR) in this regard.
5. In the present case, the Applicant’s claim arises from enforcement of an arbitral award under Section 36 of the Arbitration Act, which expressly allows recognition and enforcement of both domestic and international awards. There is no statutory requirement that a foreign award creditor must be registered in Kenya to seek enforcement.
6. Further, the spirit of access to justice so deeply entrenched under Articles 48, 50(1), and 22(1) of the Constitution supports the right of a foreign company to sue in Kenya where it seeks to enforce a legal right. Accordingly, the objection on locus standi fails.
7. On the procedural objections, I acknowledge that the Arbitration Rules expressly require applications relating to arbitral awards to be brought by way of Chamber Summons. Nonetheless, I am guided by Article 159 of the Constitution, which enjoins courts to administer justice without undue regard to procedural technicalities.
8. The jurisprudence of the Court of Appeal, particularly in Trust Bank Limited v Amalo Company Limited Civil Appeal No. 215 of 2000 [2002] 2 KLR 627; [2003] 1 EA 350, and Central Bank of Kenya v Uhuru Highway Development Ltd & Others Civil Appeal No. 75 of 1998, reinforces this principle by emphasizing that procedural lapses which do not occasion prejudice to the parties should not be elevated into fatal defects.
9. In the present case, although the Applicant proceeded by Notice of Motion rather than Chamber Summons, the Respondents were duly served and afforded an opportunity to respond. No prejudice has been demonstrated, and the irregularity does not impede the Court’s jurisdiction or the fair determination of the matter.
10. The Respondents also argued that the application before the Court ought to have been filed as a separate miscellaneous cause rather than within the existing suit. The practice in this area remains unsettled whereby sometimes parties file distinct applications for recognition or setting aside of arbitral awards, and other times they proceed within the original suit. I find guidance in Rule 3(2) of the Arbitration Rules. This provision allows subsequent applications connected to arbitration to be filed within the same cause.
11. I do note that although practice has evolved to permit both approaches, no prejudice has been shown to result from the Applicant’s choice of procedure. The Respondents were duly served and afforded an opportunity to respond, and the matter has been properly placed before the Court. Accordingly, the objection lacks merit, as the form of filing does not affect jurisdiction or fairness, and as such I will proceed to consider the application on its merits.
DATED, SIGNED AND DELIVERED IN NAIROBI
THIS 28th DAY OF JANUARY 2026.
F. MUGAMBI
JUDGE
Delivered in the presence of:
Ms Buluma holding brief for Mr Miller for the applicant
Ms Koile for the 2nd respondent