I have considered the Respondent’s Notice of Motion dated 31st May 2022 together with the Supporting affidavit of Bulent Gulbahar, a director of the Respondent, sworn on 31st May 2022. The application seeks a raft of orders made under Articles 25(1), 35(1)(b), 50(1) and 159(2)(d) of the Constitution and section 37 of the Arbitration Act including an order directing the Applicant to produce the duly authenticated original award or a duly certified copy, the original agreements containing the arbitration clause, invoices made in support of the Applicant’s claim against it and proof of payment of the invoices in support of the award.
From the orders sought, the Respondent, in effect, pre-empts the Applicant’s application dated 27th October 2021 made under section 36(2) of the Arbitration Act seeking recognition and enforcement an arbitral award dated 5th June 2020.
In resolving application for recognition and enforcement of an arbitral award, the court is required to consider whether the Applicant has met the formal and substantive requirements for recognition and enforcement set out in sections 36 and 37 of the Arbitration Act.
The issue raised by the Respondent are clearly in response to the application the court will consider. The duty of the court will be to decide whether or not recognise and enforce the arbitral award and in doing so have regard to the issue raised in the Respondent’s application dated 31st May 2021.
Further it must be borne in mind that the expediency is one of the hallmarks of the arbitration process and dealing with matter piecemeal undermines the overall objective of the Arbitration Act. I therefore decline to consider the application separately and direct that the pending applications be finalized.
DATED and DELIVERED at NAIROBI this 15th day of JULY 2022
D. S. MAJANJA
JUDGE