'1. The application herein by way of Chamber Summons dated 10th February 2025 is for enforcement of an arbitral award as a judgment of the court. The application is brought under section 36 of the Arbitration Act (Cap. 49) Laws of Kenya, Rules 4(1), 2, 3, 4, 5, 6 and 11 of the Arbitration Rules, 1997; Order 46 of the Civil Procedure Rules; sections 3 and 59 of the Civil Procedure Act (Cap. 21) Laws of Kenya and all other enabling provisions of the law.
2. The orders sought are as follows:
a. that the partial arbitral award dated 15th September 2023 be recognized, adopted and enforced as a decree of the court.
b. that the final arbitral award dated 29th October 2024 be recognized, adopted and enforced as a decree of the court.
c. that judgment be entered in favour of the applicant in terms of the partial arbitral award dated 15th September 2023 and final arbitral award dated 29th October 2024
3. The partial and final arbitral awards are in the following terms as set out by the applicant in this application:
CONSENT
A) THAT physical possession of all that parcel of land known as L.R.NO 214/718 (original number 214/717/2) was handed over to the claimant on 4th of August, 2023 and receipt of vacant possession is hereby acknowledged.
B) THAT parties hereby agree to exchange completion documents within 30 days of this order.
C) THAT in default by either party to hand over their respective completion documents, the aggrieved party may apply to the Deputy Registrar Environment and Land Court to execute transfer and costs thereof to be borne by the defaulting party.
i) The claimant hand over to the respondents’ Counsel all the completion documents for all the parcel of land known as L.R. 20338 in favour of the 1st Respondent.
ii) The 2nd Respondent to hand over all the completion documents L.R. No 214/718 (ORIGINAL NUMBER 214/717/2) in favour of the Claimant’s counsel.
FURTHER CONSENT
D) THAT the tribunal to dispense with the hearing of the matter and in liu thereof determine whether it has jurisdiction with respect to prayer (c) of the amended statement of claim dated 10th August 2023.
E) THAT parties shall file written submissions on the question of jurisdiction in order (4) above, and on who should bear the costs of this arbitration within 14 days on or before the 29th September, 2023.
F) THAT if the tribunal funds that it has jurisdiction over prayer (c), it shall award the same to the claimant as prayed and determine who should bear the costs of the arbitration or part therefore.
G) THAT if the tribunal finds that it does not have jurisdiction to award proper (c), it shall mark the arbitration as closed without any further orders, except that which relates to the arbitration fee.
FURTHER
H) THAT mesne profits equivalent to the rent of Kshs 300,000 per month for the property known as L.R. NO. 214/718 (ORIGINAL NUMBER 214/717/2) accruing from 25th August 2020 until the date of handover being 4th August 2023 all totaling to Kshs 10,800,000/=.
I) THAT costs of the Arbitration Proceedings be provided for including;
i) Appointment of an Arbitrator amounting to Kshs 20,000.
ii) Costs of the Valuation Report by Joe Musyoki valuers provided in the claimant’s supplementary documents on the 10th August, 2023 amounting to Kshs 1,069,520 be borne by the Respondent.
iii) Costs of the Tribunal be borne by the Respondent, that is Kshs 241,500 plus 16% VAT amounting to Kshs 2580,140.
iv) Costs are assessed by the Tribunal.
J) THAT the costs of this Application be provided for.
4. The arbitral Tribunal entered rendered the Final Award on 29th October 2024 wherein it determined that it had jurisdiction to award mesne profits and the applicant was awarded mesne profits totaling KShs 10,800,000/= which was equivalent to rent for the property of KShs 30,000/= per month accruing from 25th August 2020 until the date of handover on 4th August 2023 plus costs of the application.
5. The application is based on grounds on the face thereof and supported by the affidavit of John Wambugu sworn on 10th February 2025. The grounds and supporting affidavit largely reiterate the issues that were being canvassed before the arbitral tribunal and the processes undertaken there to arrive at the partial and final awards.
6. The applicant has annexed to the supporting affidavit the partial arbitral award dated 15th September 2023 (JNN – 9A) and the final arbitral award dated 29th October 2024 made by the learned arbitrator.
7. The applicant deposes that whereas the partial arbitral award was fulfilled by the respondent by handing over the completion documents and transfer of the property, as agreed, the final arbitral award remains unfulfilled.
8. The applicant deposes further that since the final arbitral award was made, a significant period of time has elapsed and the respondents have not taken any steps to set aside the final arbitral award. Further that the final arbitral award is plain and devoid of any latent ambiguity and therefore is enforceable as there are no compelling reasons why the respondent has failed to honour it.
9. Learned counsel for the applicant filed submissions urging the court to adopt and enter the awards as a judgment of the court. The applicant has set out the issues for determination to be whether the court should adopt the partial and final arbitral awards as a judgment of the court and who should bear the costs of the application.
10. The applicant submits that it has satisfied the consitions for the adoption for enforcement of the partial and arbitral awards as required under section 36 of the Arbitration Act and all the requirements set out under section 8 of the Tripartite Deed of Transfer were met. That the applicant has also produced the certified copies of the partial and final arbitral awards.
11. The applicant submits further that no grounds have been shown to exist under section 37 of the Arbitration Act that would cause the award not to be recognized and enforced.
12. The applicant submits further that the respondent has not made an application for setting aside of the arbitral award and in any case, is out of time for doing the same which may not be made after 3 months have elapsed from the date on which the party making the application had received the arbitral award.
13. The applicant submits citing authorities that there is no right for any court to intervene in the arbitral process, or in the award except in the situations specifically set out in the Arbitration Act or as previously agreed in advance by the parties and simultaneously there is no right of appeal to the High Court or the Court of Appeal against an award except in the circumstances set out in section 39 of the arbitration Act. (see the case of Anne Mumbi Hanga v Victoria Njoki Gathara as cited in the case of Lalji Meghji Patel & Co. Ltd v. Nature Green Holding Limited [2017] eKLR.
14. I have considered the application and the submissions by counsel for the applicant. The respondent did not participate in the application despite being duly served. The issue for determination is whether the partial arbitral award and the final arbitral awards should be entered as a judgment of this court for purposes of enforcement of the decree arising therefrom.
15. Section 36 of the Arbitration Act provides for the recognition and enforcement of arbitration awards as follows: -
(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 must 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.
16. The applicant herein has shown that there is an arbitral award between the applicant and the respondent. It has provided certified copies of the partial and final awards as well as the agreement upon which the parties referred their dispute to the arbitral tribunal. The next issue to determine is whether there is any ground for refusal of recognition or enforcement of the arbitral awards.
17. Section 37 provides for the grounds for refusal of recognition or enforcement of an arbitral award as follows:
(1) The recognition or enforcement of an arbitral award, irrespective of the state in which it was made, may be refused only—
(a) at the request of the party against whom it is invoked, if that party furnishes to the High Court proof that—
i. a party to the arbitration agreement was under some incapacity; or
ii. the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication of that law, under the law of the state where the arbitral award was made;
iii. the party against whom the arbitral award is invoked was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or
iv. the arbitral award deals with a dispute not contemplated by or not falling within the terms of the reference to arbitration, or it contains decisions on matters beyond the scope of the reference to arbitration, provided that if the decisions on matters referred to arbitration can be separated from those not so referred, that part of the arbitral award which contains decisions on matters referred to arbitration may be recognised and enforced; or
v. the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties or, failing any agreement by the parties, was not in accordance with the law of the state where the arbitration took place; or
vi. the arbitral award has not yet become binding on the parties or has been set aside or suspended by a court of the state in which, or under the law of which, that arbitral award was made; or
vii. the making of the arbitral award was induced or affected by fraud, bribery, corruption or undue influence;
(b) if the High Court finds that—
i. the subject-matter of the dispute is not capable of settlement by arbitration under the law of Kenya; or
ii. the recognition or enforcement of the arbitral award would be contrary to the public policy of Kenya.
(2) If an application for the setting aside or suspension of an arbitral award has been made to a court referred to in subsection (1)(a)(vi), the High Court may, if it considers it proper, adjourn its decision and may also, on the application of the party, claiming recognition or enforcement of the arbitral award, order the other party to provide appropriate security.
18. None of the grounds for refusal of recognition or enforcement of the arbitral awards as set out above has been shown to exist in the present case. I am therefore satisfied that the same meet the requirements for recognition, and enforcement of an arbitral award as set out under section 36 of the Arbitration Act. I am satisfied that the respondent had full knowledge of delivery of the partial award which it has fulfilled the terms thereof and also the final award whose terms it is yet to fulfill. The contents of the said awards have not been controverted. Further, no application has been made for the setting aside of the award under Section 35 of the Arbitration Act .
19. Consequently, it is hereby ordered that the partial arbitral award dated 15th September 2023 and the final arbitral award dated 29th October 2024 being so recognized are adopted as a judgment of this court. The Applicant is at liberty to enforce the judgment as a decree of this court.
20. For the foregoing reasons the application is allowed with no orders as to costs.
21. Orders accordingly.
Written, dated, signed and delivered this 8th day of September 2025.
ANDAYI W. F.
JUDGE
In the presence of:
Thuo holding brief for Eredi for the applicant.
N/A for the Respondent.
Carlos: Court assistant.
'
2. The orders sought are as follows:
a. that the partial arbitral award dated 15th September 2023 be recognized, adopted and enforced as a decree of the court.
b. that the final arbitral award dated 29th October 2024 be recognized, adopted and enforced as a decree of the court.
c. that judgment be entered in favour of the applicant in terms of the partial arbitral award dated 15th September 2023 and final arbitral award dated 29th October 2024
3. The partial and final arbitral awards are in the following terms as set out by the applicant in this application:
CONSENT
A) THAT physical possession of all that parcel of land known as L.R.NO 214/718 (original number 214/717/2) was handed over to the claimant on 4th of August, 2023 and receipt of vacant possession is hereby acknowledged.
B) THAT parties hereby agree to exchange completion documents within 30 days of this order.
C) THAT in default by either party to hand over their respective completion documents, the aggrieved party may apply to the Deputy Registrar Environment and Land Court to execute transfer and costs thereof to be borne by the defaulting party.
i) The claimant hand over to the respondents’ Counsel all the completion documents for all the parcel of land known as L.R. 20338 in favour of the 1st Respondent.
ii) The 2nd Respondent to hand over all the completion documents L.R. No 214/718 (ORIGINAL NUMBER 214/717/2) in favour of the Claimant’s counsel.
FURTHER CONSENT
D) THAT the tribunal to dispense with the hearing of the matter and in liu thereof determine whether it has jurisdiction with respect to prayer (c) of the amended statement of claim dated 10th August 2023.
E) THAT parties shall file written submissions on the question of jurisdiction in order (4) above, and on who should bear the costs of this arbitration within 14 days on or before the 29th September, 2023.
F) THAT if the tribunal funds that it has jurisdiction over prayer (c), it shall award the same to the claimant as prayed and determine who should bear the costs of the arbitration or part therefore.
G) THAT if the tribunal finds that it does not have jurisdiction to award proper (c), it shall mark the arbitration as closed without any further orders, except that which relates to the arbitration fee.
FURTHER
H) THAT mesne profits equivalent to the rent of Kshs 300,000 per month for the property known as L.R. NO. 214/718 (ORIGINAL NUMBER 214/717/2) accruing from 25th August 2020 until the date of handover being 4th August 2023 all totaling to Kshs 10,800,000/=.
I) THAT costs of the Arbitration Proceedings be provided for including;
i) Appointment of an Arbitrator amounting to Kshs 20,000.
ii) Costs of the Valuation Report by Joe Musyoki valuers provided in the claimant’s supplementary documents on the 10th August, 2023 amounting to Kshs 1,069,520 be borne by the Respondent.
iii) Costs of the Tribunal be borne by the Respondent, that is Kshs 241,500 plus 16% VAT amounting to Kshs 2580,140.
iv) Costs are assessed by the Tribunal.
J) THAT the costs of this Application be provided for.
4. The arbitral Tribunal entered rendered the Final Award on 29th October 2024 wherein it determined that it had jurisdiction to award mesne profits and the applicant was awarded mesne profits totaling KShs 10,800,000/= which was equivalent to rent for the property of KShs 30,000/= per month accruing from 25th August 2020 until the date of handover on 4th August 2023 plus costs of the application.
5. The application is based on grounds on the face thereof and supported by the affidavit of John Wambugu sworn on 10th February 2025. The grounds and supporting affidavit largely reiterate the issues that were being canvassed before the arbitral tribunal and the processes undertaken there to arrive at the partial and final awards.
6. The applicant has annexed to the supporting affidavit the partial arbitral award dated 15th September 2023 (JNN – 9A) and the final arbitral award dated 29th October 2024 made by the learned arbitrator.
7. The applicant deposes that whereas the partial arbitral award was fulfilled by the respondent by handing over the completion documents and transfer of the property, as agreed, the final arbitral award remains unfulfilled.
8. The applicant deposes further that since the final arbitral award was made, a significant period of time has elapsed and the respondents have not taken any steps to set aside the final arbitral award. Further that the final arbitral award is plain and devoid of any latent ambiguity and therefore is enforceable as there are no compelling reasons why the respondent has failed to honour it.
9. Learned counsel for the applicant filed submissions urging the court to adopt and enter the awards as a judgment of the court. The applicant has set out the issues for determination to be whether the court should adopt the partial and final arbitral awards as a judgment of the court and who should bear the costs of the application.
10. The applicant submits that it has satisfied the consitions for the adoption for enforcement of the partial and arbitral awards as required under section 36 of the Arbitration Act and all the requirements set out under section 8 of the Tripartite Deed of Transfer were met. That the applicant has also produced the certified copies of the partial and final arbitral awards.
11. The applicant submits further that no grounds have been shown to exist under section 37 of the Arbitration Act that would cause the award not to be recognized and enforced.
12. The applicant submits further that the respondent has not made an application for setting aside of the arbitral award and in any case, is out of time for doing the same which may not be made after 3 months have elapsed from the date on which the party making the application had received the arbitral award.
13. The applicant submits citing authorities that there is no right for any court to intervene in the arbitral process, or in the award except in the situations specifically set out in the Arbitration Act or as previously agreed in advance by the parties and simultaneously there is no right of appeal to the High Court or the Court of Appeal against an award except in the circumstances set out in section 39 of the arbitration Act. (see the case of Anne Mumbi Hanga v Victoria Njoki Gathara as cited in the case of Lalji Meghji Patel & Co. Ltd v. Nature Green Holding Limited [2017] eKLR.
14. I have considered the application and the submissions by counsel for the applicant. The respondent did not participate in the application despite being duly served. The issue for determination is whether the partial arbitral award and the final arbitral awards should be entered as a judgment of this court for purposes of enforcement of the decree arising therefrom.
15. Section 36 of the Arbitration Act provides for the recognition and enforcement of arbitration awards as follows: -
(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 must 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.
16. The applicant herein has shown that there is an arbitral award between the applicant and the respondent. It has provided certified copies of the partial and final awards as well as the agreement upon which the parties referred their dispute to the arbitral tribunal. The next issue to determine is whether there is any ground for refusal of recognition or enforcement of the arbitral awards.
17. Section 37 provides for the grounds for refusal of recognition or enforcement of an arbitral award as follows:
(1) The recognition or enforcement of an arbitral award, irrespective of the state in which it was made, may be refused only—
(a) at the request of the party against whom it is invoked, if that party furnishes to the High Court proof that—
i. a party to the arbitration agreement was under some incapacity; or
ii. the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication of that law, under the law of the state where the arbitral award was made;
iii. the party against whom the arbitral award is invoked was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or
iv. the arbitral award deals with a dispute not contemplated by or not falling within the terms of the reference to arbitration, or it contains decisions on matters beyond the scope of the reference to arbitration, provided that if the decisions on matters referred to arbitration can be separated from those not so referred, that part of the arbitral award which contains decisions on matters referred to arbitration may be recognised and enforced; or
v. the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties or, failing any agreement by the parties, was not in accordance with the law of the state where the arbitration took place; or
vi. the arbitral award has not yet become binding on the parties or has been set aside or suspended by a court of the state in which, or under the law of which, that arbitral award was made; or
vii. the making of the arbitral award was induced or affected by fraud, bribery, corruption or undue influence;
(b) if the High Court finds that—
i. the subject-matter of the dispute is not capable of settlement by arbitration under the law of Kenya; or
ii. the recognition or enforcement of the arbitral award would be contrary to the public policy of Kenya.
(2) If an application for the setting aside or suspension of an arbitral award has been made to a court referred to in subsection (1)(a)(vi), the High Court may, if it considers it proper, adjourn its decision and may also, on the application of the party, claiming recognition or enforcement of the arbitral award, order the other party to provide appropriate security.
18. None of the grounds for refusal of recognition or enforcement of the arbitral awards as set out above has been shown to exist in the present case. I am therefore satisfied that the same meet the requirements for recognition, and enforcement of an arbitral award as set out under section 36 of the Arbitration Act. I am satisfied that the respondent had full knowledge of delivery of the partial award which it has fulfilled the terms thereof and also the final award whose terms it is yet to fulfill. The contents of the said awards have not been controverted. Further, no application has been made for the setting aside of the award under Section 35 of the Arbitration Act .
19. Consequently, it is hereby ordered that the partial arbitral award dated 15th September 2023 and the final arbitral award dated 29th October 2024 being so recognized are adopted as a judgment of this court. The Applicant is at liberty to enforce the judgment as a decree of this court.
20. For the foregoing reasons the application is allowed with no orders as to costs.
21. Orders accordingly.
Written, dated, signed and delivered this 8th day of September 2025.
ANDAYI W. F.
JUDGE
In the presence of:
Thuo holding brief for Eredi for the applicant.
N/A for the Respondent.
Carlos: Court assistant.
'