1. This dispute tests the strict application and boundaries of Alternative Dispute Resolution within the realm of employment relations. It directly pits the sanctity of contract and the arbitral process against the specialized statutory regime of labour law. At the heart of the matter is an application to recognize and enforce a Kshs. 320,107.37 arbitral award. The core issue framed for determination is strictly jurisdictional: can parties validly subject an employment dispute to arbitration, or does the Constitution and the Employment and Labour Relations Court Act vest exclusive, non-delegable jurisdiction over such matters entirely within the Employment and Labour Relations Court, thereby rendering the arbitral process null and void?
2. This is a Ruling in respect of an application seeking recognition and enforcement of an Arbitral Award.
Background Facts
3. The Applicant filed the Chamber Summons dated 13th April, 2024 seeking the following orders:
a) The Arbitral Award dated 28th July, 2023 be recognized, adopted, and enforced as an order of the court.
b) The Court to grant leave to enforce the Award as a Decree of the Court.
c) The Respondent pay all costs and expenses incidental to the enforcement and execution of the award.
d) The costs of the application be provided for.
e) The Court be at liberty to make such further and other orders that as it deems fit to meet the ends of justice.
4. The Application was supported by the Affidavit of Josea Rono. It was stated that a dispute arose between the parties herein in relation to a Consultancy Agreement dated 1st November, 2020. This is following the Respondent’s termination of the contract “with immediate effect”. This was vide an email attachment dated on or about 7th January, 2021, without issuance of the requisite notice. Efforts to amicably resolve the dispute proved futile. This prompted the Applicant to institute arbitral proceedings pursuant to the provisions of the Arbitration Act. Consequently, a Sole Arbitrator was duly appointed. The arbitral proceedings culminated in a Final Award dated 28th July, 2023. It was published on 12th October, 2023 in favour of the Applicant.
5. The Learned Arbitrator awarded the Applicant a sum of Kshs. 169,481.37 inclusive of interest at CBK rates. This is together with Kshs. 150,626/= being reimbursement of arbitral costs fully paid by the Applicant. This brought the total amount due to Kshs. 320,107.37 exclusive of accruing interest at CBK rates from the date of the Award. The said Award has neither been challenged nor set aside since its publication. Despite issuance of demand letters requiring settlement of the decretal sum, the Respondent has failed and/or refused to comply with the terms of the Award. This has thereby necessitated the present Application for recognition, adoption, and enforcement of the Award as an Order of the Court.
6. In response, the Respondent filed the Replying Affidavit sworn on 10th December, 2024. She stated that she was employed by the Applicant as a Corporate Finance Analyst, pursuant to a Contract of Employment dated 1st November, 2020. She was entitled to employee benefits, including leave days, medical leave, and bonuses. She therefore contended that the characterization of the relationship as that of an Independent Contractor is false and misleading. Further, she stated that employment contracts are governed by the Employment Act. That the Act does not provide for the resolution of employment disputes through arbitration.
7. The Respondent further contended that the Arbitrator lacked jurisdiction to adjudicate the dispute. She maintained that exclusive jurisdiction over employment and labour disputes is vested in the Employment and Labour Relations Court. This is pursuant to Article 162(2) of the Constitution and Section 12 of the Employment and Labour Relations Court Act. She averred that the arbitral proceedings and the resultant award are therefore null and void, and incapable of enforcement. This is because the dispute in issue was purely an employment matter requiring determination by the specialized Court established for that purpose.
8. The Respondent added that she objected to the arbitral proceedings on account of lack of finances and the prohibitive costs associated with arbitration. This is including the sharing of the Arbitrator’s fees, which she was unable to pay due to financial constraints. The arbitral process reflected unequal bargaining power in favour of the Employer. It thus failed to accord her the protections available before the Employment and Labour Relations Court. This thereby rendered the award unfair, oppressive, and liable to be set aside.
Issues for determination
9. The Court has carefully considered the Application, the response, and the written submissions, and the issue for determination is as follows:
a) Whether the Applicant has established a basis for recognition and enforcement of the arbitral award.
Analysis
10. It was the Applicant’s submissions that the Arbitral Award dated 28th July, 2023 is valid, binding, and fully enforceable. There has been no successful challenge mounted against the same. The Respondent’s continued refusal to settle the outstanding sum lawfully due and owing to the Applicant amounts to a blatant disregard of contractual obligations. These were obligations freely and voluntarily entered into by the parties. Lawful contracts must be upheld and enforced by Courts and Tribunals where breached. That the Court should uphold the sanctity of contract by compelling the Respondent to satisfy the outstanding payment in lieu of notice.
11. In contrast, the Respondent maintained that the Arbitral Tribunal lacked jurisdiction to hear and determine the dispute herein. That this being an employment dispute it fell exclusively within the jurisdiction of the Employment and Labour Relations Court. The Respondent contested the arbitral proceedings and expressly communicated her inability to effectively participate owing to financial constraints. That this thereby demonstrated the unequal bargaining power between the parties and the inherent unfairness of the arbitral process. Consequently, the Respondent submitted that the resultant award is null, void, and unenforceable in law.
12. Further, the Applicant added that the Respondent has failed to meet the threshold set under Section 37 of the Arbitration Act, to warrant refusal of recognition or enforcement of the Award. The Applicant reiterated that the agreement between the parties was one of consultancy and not employment. In any event, the jurisdictional objections now raised are belated, having been introduced after conclusion of the arbitral proceedings, and are therefore barred.
13. While Section 36 of the Arbitration Act deals with the enforcement and recognition of an arbitral award, Section 37 of the Arbitration Act provides the grounds for refusal of recognition or enforcement of an arbitral award.
14. Section 36(1) of the Arbitration Act, provides that:
“(1) A domestic arbitral award shall be recognized as binding and, upon application in writing to the High Court, shall be enforced in the same manner as if it were a judgment or order of the court.
…
(3) The party relying on an arbitral award or applying for its enforcement shall furnish (a) the original arbitral award or a copy thereof duly authenticated in the manner required by the law of the country in which it was made; and (b) the original arbitration agreement or a duly certified copy thereof.”
15. Section 37 of the Arbitration Act provides in part: -
37. Grounds for refusal of recognition or enforcement
(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;
(ii) or 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;
(ii) or the recognition or enforcement of the arbitral award would be contrary to the public policy of Kenya.
16. The Court notes that there was an Arbitral Clause as evidenced by Paragraphs 1 and 2 of the Arbitral Award as follows:
“By a contract dated 1st November 2020 ("the Agreement"), between the two parties, Clause 8 of the Contract provides for arbitration and reads as follows:
“8.1 The parties shall seek to settle all differences and disputes arising out of or in connection with the implementation of this Contract in an amicable manner
8.2 However, should all attempts at amicable reconciliation fail, all disputes arising out of or in connection with the present contract shall be finally settled under the Arbitration Act, no. 4 of 1995 and any amendments thereon by one arbitrator appointed by the Chairman of the Chartered Institute of Arbitrators, Kenya Chapter.
8.3 The decision of the arbitrator shall be binding and final."
I, Rina Ahluwalia Chatrath, LLB (Hons), MBA, MCIArb., was seized of jurisdiction through the exchange of correspondence commencing on 28th November 2022, whereby the Claimant's Advocates attached relevant documents, including a copy of the contract dated 1st November 2020 between E&K Consulting LLP and Eileen Bonareri Orwaru. A dispute had arisen therefrom, and the parties' attempt at amicable negotiations bore no fruit. The parties further failed to agree on a single arbitrator and requested the Chartered Institute of Arbitrators (Kenya Branch) to appoint an arbitrator to handle the matter. The Chairman of the Chartered Institute of Arbitrators (Kenya Branch) then nominated me as the Sole Arbitrator in the matter and appointed me the Sole Arbitrator in the dispute vide a letter dated 15th December 2022 but received by me vide an email on 19th January 2023. I formally accepted the appointment, vide a letter dated 23rd January 2023, sent to all the parties and copied to the Chairman of the Chartered Institute of Arbitrators (Kenya Branch) vide an email of the same date. The letter of acceptance contained my Terms of Acceptance.”
17. To affirm the above, the Respondent in her Replying Affidavit acknowledged that she was employed by the Applicant Company as a Corporate Finance Analyst. This is vide a contract of employment dated the 1st November, 2020.
18. The Respondent contended that arbitration is not a competent dispute resolution mechanism for employment disputes. That consequently, the Arbitrator lacked jurisdiction to determine the matter. The dispute herein arose from an employment relationship and therefore falls squarely within the exclusive jurisdiction of the Employment and Labour Relations Court. The Court is established under Article 162(2)(a) of the Constitution and Section 12 of the Employment and Labour Relations Court Act. Accordingly, the arbitral tribunal lacked the requisite jurisdiction to adjudicate upon the dispute between the Applicant and the Respondent. That jurisdiction over such matters being constitutionally and statutorily reserved for the Employment and Labour Relations Court. Consequently, the arbitral proceedings and the resultant award are null and void for want of jurisdiction.
19. Contrary to the Respondent’s argument, Section 15 of the Employment and Labour Relations Court Act provides for alternative dispute resolution, such as arbitration in terms of the agreement between the parties.
15. Alternative dispute resolution
(1) Nothing in this Act may be construed as precluding the Court from adopting and implementing, on its own motion or at the request of the parties, any other appropriate means of dispute resolution, including internal methods, conciliation, mediation and traditional dispute resolution mechanisms in accordance with Article 159(2)(c) of the Constitution.
(2) Deleted by Act No. 18 of 2014, Sch.
(3) Deleted by Act No. 18 of 2014, Sch.
(4) If at any stage of the proceedings it becomes apparent that the dispute ought to have been referred for conciliation or mediation, the Court may stay the proceedings and refer the dispute for conciliation, mediation or arbitration.
(5) In the exercise of its powers under this Act, the Court may be bound by the national wage guidelines on minimum wages and standards of employment, and other terms and conditions of employment that may be issued, from time to time, by the Cabinet Secretary for the time being responsible for finance.
(6) Nothing in this section shall preclude the Court from making reference to the guidelines as may be published from time to time by the Salaries and Remuneration Commission to the extent to which they may be relevant to the dispute.
20. The Applicant's application for recognition and enforcement of the arbitral award is anchored upon Section 36 of the Arbitration Act. It requires that the Applicant provides
“(a) the original arbitral award or a copy thereof duly authenticated in the manner required by the law of the country in which it was made; and (b) the original arbitration agreement or a duly certified copy thereof.”
21. The Court notes that the Applicant has provided a certified copy of the arbitral award. However, a duly certified copy of the arbitration agreement is missing. It is noteworthy that the existence of the agreement is not disputed as the Respondent acknowledged that she was employed by the Applicant Company as a Corporate Finance Analyst vide a contract of employment dated the 1st November, 2020. The Court exercises its discretion in this matter in line with decision in Said & another v Banda Homes Limited [2022] KEHC 14265 (KLR).
22. The Court hereby allows the Applicant’s Application for recognition and enforcement of the Arbitral Award. The Court further directs the Applicant to comply with the provisions of Section 36 (3) (b) of the Arbitration Act within the next Thirty (30) days from the date hereof. This is by availing certified copies of the missing agreement, said to contain the arbitral clauses for verification before the Deputy Registrar of the Commercial & Tax Division. Failure to do so within the stipulated time, the application shall stand struck out for noncompliance.
23. As to costs, the same follow the event. They also lie at the discretion of this Court. The Court notes that this is a fairly routine matter for recognition and enforcement of an Arbitral Award which was opposed by the Respondent. The Court awards costs to the Applicant and assesses them at Kshs. 50,000/= (Kenya Shillings Fifty Thousand only).
Determination
24. The Applicant’s application by way of a Chamber Summons dated 13th April, 2024 is allowed in the following terms;
(a) THAT the Court HEREBY directs the Applicant to comply with the provisions of Section 36 (3) (b) of the Arbitration Act within the next Thirty (30) days from the date hereof. This is by availing a certified copy of the contract dated 1st November, 2020 for verification before the Honourable Deputy Registrar of the Commercial & Tax Division. Failure to do so within the stipulated time, the application shall stand struck out for non-compliance.
(b) THAT upon compliance with Order (a) above, the Arbitral Award dated 28th July, 2023 is HEREBY recognized, adopted, and enforced as an order of the Court.
(c) THAT the Court HEREBY grants leave to enforce the Award as a Decree of the Court.
(d) THAT the Respondent shall pay all costs and expenses incidental to the enforcement and execution of the award.
(e) THAT the costs of the application are HEREBY assessed at Kshs. 50,000/= (Kenya Shillings Fifty Thousand).
25. It is so ordered.
DATED, SIGNED AND DELIVERED AT MILIMANI THIS 20TH DAY OF JULY, 2026.
NJOROGE BENJAMIN K.
JUDGE
In the presence of:
Mr. Amanya for the Applicant.
Miss Chumo for the Respondent.
Mr. John Paul - Court Assistant.
2. This is a Ruling in respect of an application seeking recognition and enforcement of an Arbitral Award.
Background Facts
3. The Applicant filed the Chamber Summons dated 13th April, 2024 seeking the following orders:
a) The Arbitral Award dated 28th July, 2023 be recognized, adopted, and enforced as an order of the court.
b) The Court to grant leave to enforce the Award as a Decree of the Court.
c) The Respondent pay all costs and expenses incidental to the enforcement and execution of the award.
d) The costs of the application be provided for.
e) The Court be at liberty to make such further and other orders that as it deems fit to meet the ends of justice.
4. The Application was supported by the Affidavit of Josea Rono. It was stated that a dispute arose between the parties herein in relation to a Consultancy Agreement dated 1st November, 2020. This is following the Respondent’s termination of the contract “with immediate effect”. This was vide an email attachment dated on or about 7th January, 2021, without issuance of the requisite notice. Efforts to amicably resolve the dispute proved futile. This prompted the Applicant to institute arbitral proceedings pursuant to the provisions of the Arbitration Act. Consequently, a Sole Arbitrator was duly appointed. The arbitral proceedings culminated in a Final Award dated 28th July, 2023. It was published on 12th October, 2023 in favour of the Applicant.
5. The Learned Arbitrator awarded the Applicant a sum of Kshs. 169,481.37 inclusive of interest at CBK rates. This is together with Kshs. 150,626/= being reimbursement of arbitral costs fully paid by the Applicant. This brought the total amount due to Kshs. 320,107.37 exclusive of accruing interest at CBK rates from the date of the Award. The said Award has neither been challenged nor set aside since its publication. Despite issuance of demand letters requiring settlement of the decretal sum, the Respondent has failed and/or refused to comply with the terms of the Award. This has thereby necessitated the present Application for recognition, adoption, and enforcement of the Award as an Order of the Court.
6. In response, the Respondent filed the Replying Affidavit sworn on 10th December, 2024. She stated that she was employed by the Applicant as a Corporate Finance Analyst, pursuant to a Contract of Employment dated 1st November, 2020. She was entitled to employee benefits, including leave days, medical leave, and bonuses. She therefore contended that the characterization of the relationship as that of an Independent Contractor is false and misleading. Further, she stated that employment contracts are governed by the Employment Act. That the Act does not provide for the resolution of employment disputes through arbitration.
7. The Respondent further contended that the Arbitrator lacked jurisdiction to adjudicate the dispute. She maintained that exclusive jurisdiction over employment and labour disputes is vested in the Employment and Labour Relations Court. This is pursuant to Article 162(2) of the Constitution and Section 12 of the Employment and Labour Relations Court Act. She averred that the arbitral proceedings and the resultant award are therefore null and void, and incapable of enforcement. This is because the dispute in issue was purely an employment matter requiring determination by the specialized Court established for that purpose.
8. The Respondent added that she objected to the arbitral proceedings on account of lack of finances and the prohibitive costs associated with arbitration. This is including the sharing of the Arbitrator’s fees, which she was unable to pay due to financial constraints. The arbitral process reflected unequal bargaining power in favour of the Employer. It thus failed to accord her the protections available before the Employment and Labour Relations Court. This thereby rendered the award unfair, oppressive, and liable to be set aside.
Issues for determination
9. The Court has carefully considered the Application, the response, and the written submissions, and the issue for determination is as follows:
a) Whether the Applicant has established a basis for recognition and enforcement of the arbitral award.
Analysis
10. It was the Applicant’s submissions that the Arbitral Award dated 28th July, 2023 is valid, binding, and fully enforceable. There has been no successful challenge mounted against the same. The Respondent’s continued refusal to settle the outstanding sum lawfully due and owing to the Applicant amounts to a blatant disregard of contractual obligations. These were obligations freely and voluntarily entered into by the parties. Lawful contracts must be upheld and enforced by Courts and Tribunals where breached. That the Court should uphold the sanctity of contract by compelling the Respondent to satisfy the outstanding payment in lieu of notice.
11. In contrast, the Respondent maintained that the Arbitral Tribunal lacked jurisdiction to hear and determine the dispute herein. That this being an employment dispute it fell exclusively within the jurisdiction of the Employment and Labour Relations Court. The Respondent contested the arbitral proceedings and expressly communicated her inability to effectively participate owing to financial constraints. That this thereby demonstrated the unequal bargaining power between the parties and the inherent unfairness of the arbitral process. Consequently, the Respondent submitted that the resultant award is null, void, and unenforceable in law.
12. Further, the Applicant added that the Respondent has failed to meet the threshold set under Section 37 of the Arbitration Act, to warrant refusal of recognition or enforcement of the Award. The Applicant reiterated that the agreement between the parties was one of consultancy and not employment. In any event, the jurisdictional objections now raised are belated, having been introduced after conclusion of the arbitral proceedings, and are therefore barred.
13. While Section 36 of the Arbitration Act deals with the enforcement and recognition of an arbitral award, Section 37 of the Arbitration Act provides the grounds for refusal of recognition or enforcement of an arbitral award.
14. Section 36(1) of the Arbitration Act, provides that:
“(1) A domestic arbitral award shall be recognized as binding and, upon application in writing to the High Court, shall be enforced in the same manner as if it were a judgment or order of the court.
…
(3) The party relying on an arbitral award or applying for its enforcement shall furnish (a) the original arbitral award or a copy thereof duly authenticated in the manner required by the law of the country in which it was made; and (b) the original arbitration agreement or a duly certified copy thereof.”
15. Section 37 of the Arbitration Act provides in part: -
37. Grounds for refusal of recognition or enforcement
(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;
(ii) or 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;
(ii) or the recognition or enforcement of the arbitral award would be contrary to the public policy of Kenya.
16. The Court notes that there was an Arbitral Clause as evidenced by Paragraphs 1 and 2 of the Arbitral Award as follows:
“By a contract dated 1st November 2020 ("the Agreement"), between the two parties, Clause 8 of the Contract provides for arbitration and reads as follows:
“8.1 The parties shall seek to settle all differences and disputes arising out of or in connection with the implementation of this Contract in an amicable manner
8.2 However, should all attempts at amicable reconciliation fail, all disputes arising out of or in connection with the present contract shall be finally settled under the Arbitration Act, no. 4 of 1995 and any amendments thereon by one arbitrator appointed by the Chairman of the Chartered Institute of Arbitrators, Kenya Chapter.
8.3 The decision of the arbitrator shall be binding and final."
I, Rina Ahluwalia Chatrath, LLB (Hons), MBA, MCIArb., was seized of jurisdiction through the exchange of correspondence commencing on 28th November 2022, whereby the Claimant's Advocates attached relevant documents, including a copy of the contract dated 1st November 2020 between E&K Consulting LLP and Eileen Bonareri Orwaru. A dispute had arisen therefrom, and the parties' attempt at amicable negotiations bore no fruit. The parties further failed to agree on a single arbitrator and requested the Chartered Institute of Arbitrators (Kenya Branch) to appoint an arbitrator to handle the matter. The Chairman of the Chartered Institute of Arbitrators (Kenya Branch) then nominated me as the Sole Arbitrator in the matter and appointed me the Sole Arbitrator in the dispute vide a letter dated 15th December 2022 but received by me vide an email on 19th January 2023. I formally accepted the appointment, vide a letter dated 23rd January 2023, sent to all the parties and copied to the Chairman of the Chartered Institute of Arbitrators (Kenya Branch) vide an email of the same date. The letter of acceptance contained my Terms of Acceptance.”
17. To affirm the above, the Respondent in her Replying Affidavit acknowledged that she was employed by the Applicant Company as a Corporate Finance Analyst. This is vide a contract of employment dated the 1st November, 2020.
18. The Respondent contended that arbitration is not a competent dispute resolution mechanism for employment disputes. That consequently, the Arbitrator lacked jurisdiction to determine the matter. The dispute herein arose from an employment relationship and therefore falls squarely within the exclusive jurisdiction of the Employment and Labour Relations Court. The Court is established under Article 162(2)(a) of the Constitution and Section 12 of the Employment and Labour Relations Court Act. Accordingly, the arbitral tribunal lacked the requisite jurisdiction to adjudicate upon the dispute between the Applicant and the Respondent. That jurisdiction over such matters being constitutionally and statutorily reserved for the Employment and Labour Relations Court. Consequently, the arbitral proceedings and the resultant award are null and void for want of jurisdiction.
19. Contrary to the Respondent’s argument, Section 15 of the Employment and Labour Relations Court Act provides for alternative dispute resolution, such as arbitration in terms of the agreement between the parties.
15. Alternative dispute resolution
(1) Nothing in this Act may be construed as precluding the Court from adopting and implementing, on its own motion or at the request of the parties, any other appropriate means of dispute resolution, including internal methods, conciliation, mediation and traditional dispute resolution mechanisms in accordance with Article 159(2)(c) of the Constitution.
(2) Deleted by Act No. 18 of 2014, Sch.
(3) Deleted by Act No. 18 of 2014, Sch.
(4) If at any stage of the proceedings it becomes apparent that the dispute ought to have been referred for conciliation or mediation, the Court may stay the proceedings and refer the dispute for conciliation, mediation or arbitration.
(5) In the exercise of its powers under this Act, the Court may be bound by the national wage guidelines on minimum wages and standards of employment, and other terms and conditions of employment that may be issued, from time to time, by the Cabinet Secretary for the time being responsible for finance.
(6) Nothing in this section shall preclude the Court from making reference to the guidelines as may be published from time to time by the Salaries and Remuneration Commission to the extent to which they may be relevant to the dispute.
20. The Applicant's application for recognition and enforcement of the arbitral award is anchored upon Section 36 of the Arbitration Act. It requires that the Applicant provides
“(a) the original arbitral award or a copy thereof duly authenticated in the manner required by the law of the country in which it was made; and (b) the original arbitration agreement or a duly certified copy thereof.”
21. The Court notes that the Applicant has provided a certified copy of the arbitral award. However, a duly certified copy of the arbitration agreement is missing. It is noteworthy that the existence of the agreement is not disputed as the Respondent acknowledged that she was employed by the Applicant Company as a Corporate Finance Analyst vide a contract of employment dated the 1st November, 2020. The Court exercises its discretion in this matter in line with decision in Said & another v Banda Homes Limited [2022] KEHC 14265 (KLR).
22. The Court hereby allows the Applicant’s Application for recognition and enforcement of the Arbitral Award. The Court further directs the Applicant to comply with the provisions of Section 36 (3) (b) of the Arbitration Act within the next Thirty (30) days from the date hereof. This is by availing certified copies of the missing agreement, said to contain the arbitral clauses for verification before the Deputy Registrar of the Commercial & Tax Division. Failure to do so within the stipulated time, the application shall stand struck out for noncompliance.
23. As to costs, the same follow the event. They also lie at the discretion of this Court. The Court notes that this is a fairly routine matter for recognition and enforcement of an Arbitral Award which was opposed by the Respondent. The Court awards costs to the Applicant and assesses them at Kshs. 50,000/= (Kenya Shillings Fifty Thousand only).
Determination
24. The Applicant’s application by way of a Chamber Summons dated 13th April, 2024 is allowed in the following terms;
(a) THAT the Court HEREBY directs the Applicant to comply with the provisions of Section 36 (3) (b) of the Arbitration Act within the next Thirty (30) days from the date hereof. This is by availing a certified copy of the contract dated 1st November, 2020 for verification before the Honourable Deputy Registrar of the Commercial & Tax Division. Failure to do so within the stipulated time, the application shall stand struck out for non-compliance.
(b) THAT upon compliance with Order (a) above, the Arbitral Award dated 28th July, 2023 is HEREBY recognized, adopted, and enforced as an order of the Court.
(c) THAT the Court HEREBY grants leave to enforce the Award as a Decree of the Court.
(d) THAT the Respondent shall pay all costs and expenses incidental to the enforcement and execution of the award.
(e) THAT the costs of the application are HEREBY assessed at Kshs. 50,000/= (Kenya Shillings Fifty Thousand).
25. It is so ordered.
DATED, SIGNED AND DELIVERED AT MILIMANI THIS 20TH DAY OF JULY, 2026.
NJOROGE BENJAMIN K.
JUDGE
In the presence of:
Mr. Amanya for the Applicant.
Miss Chumo for the Respondent.
Mr. John Paul - Court Assistant.