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JudgmentInsight Management Consultant Limited VS Jambo Biscuits Kenya Limited24 min read

Insight Management Consultant Limited VS Jambo Biscuits Kenya Limited

High Court at Milimani High Court · · P. J. Otieno

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

COMMERCIAL AND ADMIRALTY DIVISION

ARB/E047/2022

INSIGHT MANAGEMENT CONSULTANTS LIMITED........................................APPLICANT

VERSUS

JAMBO BISCUITS (K) LIMITED.....................................................................RESPONDENT

Ruling

The Background Facts

  1. The Applicant moved this Court by way of a Chamber Summons dated 14th July 2022 brought under the provisions of Sections 35, 36 and 37 of the Arbitration Act 1995 and Rule 9 of the Arbitration Rules 1997. The dispute as disclosed in the Applicant’s statement of claim dated 3rd February 2014 emanates from an agreement of Supply of Labour entered into by the parties dated 20th June 2012. In it the Respondent contracted the Applicant to supply it with workers on terms stipulated in the agreement. The parties in the Agreement consented in appointing P. Mwaniki Gachoka as the sole arbitrator in the matter by a letter dated 15th October 2013. The appointment was accepted by the arbitrator vide a letter dated 12th November 2013.
  2. The Applicant contended before the arbitrator that the Respondent breached the contract term for non-payment of invoiced amounts for manpower services it had provided including reimbursement for wages, salaries and monthly management fees between November 2012 and April 2013. The applicant succeeded at the said Arbitration proceedings, and now seeks an order to recognize as binding and to enforce the Arbitral Award dated 16th September 2019 as a decree of this Court. The arbitral award was prepared by sole arbitrator, Mr. P. Mwaniki Gachoka in the matter of arbitration between Insight Management Consultants Limited and Jambo Biscuit (K) Limited and delivered on 16th September 2019.

Applicant’s Case

  1. The Applicant’s case is predicated on the grounds in the Application and reiterated in the Supporting affidavit as well as the Supplementary affidavit (hereinafter “the Affidavits”), both sworn on 14th July 2022 and 1st February 2023 respectively by Mr. David Malago, the Managing Director of the Applicant. The gist of the assertions is that:
  2. Pursuant to the written Agreement for Supply of Labour dated 20th June 2012, the Respondent contracted the Applicant to supply it with workers in terms stipulated in the agreement;
  3. Article 15 of the Agreement provided that the parties shall refer any dispute arising thereunder, and which disputes when incapable of amicable resolution, whether during the term or afterwards, touching on the agreement or its construction, if not otherwise mutually settled between the parties, would be referred to arbitration by a single arbitrator whose award shall be final and binding upon the parties;
  4. A dispute between the parties arose under the aforesaid Agreement and by mutual agreement, Mr. Mwaniki Gachoka was appointed as the sole arbitrator to hear and determine the dispute;
  5. The dispute in question was in respect of money the Respondent owed to the Applicant for services rendered under the said Agreement. The particulars of the amount are set out in the Statement of Account dated 18th June 2013;
  6. At the conclusion of the arbitral proceedings, the sole arbitrator published his Final Award dated 16th September 2019;
  7. In the said Final Award, the sole arbitrator directed, inter alia, that the Respondent pays to the Applicant the sum of Kshs.4, 172,195 with interest at 12 % p.a from the date of filing of the claim, that is to say 3rd February 2014, until payment in full; costs of the suit and that any arbitrator’s fees paid by the Applicant on the behalf of the Respondent herein to attract interest at 12 % p.a until payment in full;
  8. The sole arbitrator taxed the Claimant’s Bill of Costs at Kshs.170, 968.37 and directed the Respondent to pay the said amount within 14 days from the date of the ruling, that is to say 6th July 2020, failure to which interest would start accruing at 12% p.a simple interest rate until payment in full;
  9. The 14 days granted to the Respondent to pay the Sum of Kshs.170, 968.37 lapsed without any payment being made to the Applicant to date;
  10. The Advocates on record for the Applicant wrote to the Respondent’s Managing Director on 10th February 2020 informing him of the arbitral award delivered on 16th September 2019 in the Applicant’s favour and asking them to send the total sum of Kshs.8, 111, 151.56 through RTGS within 30 days from 10th February 2020;
  11. The 30 days granted to the Respondent to pay the total sum of Kshs.8,111,151.56 has also since lapsed without any payment being made to the Applicant to date;
  12. The grounds upon which the recognition and enforcement of an arbitral award may be refused are set out in the provisions of Section 37 of the Arbitration Act, 1995, and none of those statutory grounds for refusal exist or apply in this matter.
  13. When served with the Replying affidavit by the Respondent, the Applicant filed a Supplementary affidavit and averred to have notified the Respondent and his advocate of the meeting with notices on all the proceedings through its last known postal address: Jambo Biscuits K Ltd, P.O. Box 78681-00100, Nairobi this was after there had been failed attempts to serve them on their last known physical offices. He asserts that the Respondent was aware of the hearing date of 2nd October 2018 from the arbitrator as they were served with the hearing notice dated 17th September 2018 on 18th September 2018 with a copy of the said hearing notice having been left outside the Respondent’s premises and another posted on their last known postal address with return of service of the various notices and correspondence all of which were made to the said postal address being exhibited in court.

Respondent’s Case

  1. The Respondent opposed the Application through a Replying Affidavit sworn on 31st January 2023 and a further replying affidavit 6th February 2023 (hereinafter “the Affidavits”) both sworn by its director, Mr. Nitin Dawda. The gist of the Respondent’s objection to the recognition and enforcement of the final award in the Affidavits is that it was not given proper and sufficient notice of arbitral proceedings hence was not therefore able to represent his case. It is deponed that after its former advocates, Kibanya & Kamau Associates, ceased acting on 19th July 2018, it was never informed of the proceedings before the sole arbitrator nor was it notified of the publishing of the final award.

Applicant’s Submissions

  1. The Applicant filed submissions dated 13th January 2023 premised on the two main issues identified for determination by the court;
  2. Whether the application to enforce the final arbitral award is competent and properly before this Honourable Court; and,
  3. Whether the final arbitral award should be recognized and enforced as a Decree of this Honourable Court.
  4. On the Competence of the Application, the Applicant submits that the Respondent was aware of the hearing date of 2nd October 2018 from the arbitrator as they were served with the hearing notice dated 17th September 2018 on 18th September 2018 with one copy of the said hearing notice having been left outside the Respondent’s premises and another posted on their last known postal address.
  5. It is further submitted that the Respondent was duly notified of the hearing slated for 16th October 2018 before the sole arbitrator with the hearing notice dated 8th October 2018 having been served upon the Respondent via registered mail on the same date and a return of service dated 16th October 2018 filed with the sole arbitrator.
  6. The Applicant submits that where the affidavit of service by a process server is disputed as in the instant case, where the Respondent is denying having been served despite the glaring evidence of the said service having been effected both physically at their offices and also through their last known registered mail, there is a qualified presumption in favour of the process. The applicant cites the decision of the Court of Appeal in Shadrack Arap Baiywo vs Bodi Bach KSM CA Civil Appeal No. 122 of 1986 [1987] eKLR for the proposition that that there a presumption of due service as stated in the affidavit with the burden shifting upon the he who contests service to prove that the service is incorrect. The decision also says that in such instances, it is desirable that the process server be called for cross-examination and those contesting service given a chance to test his credibility
  7. The Applicants further submits that in its Replying affidavit to this Court’s Notice to Show Cause in HCCOM 296 of 2013, the Respondent acknowledged receipt and knowledge of the Applicant’s Chamber Summons application dated 24th May 2022 in which the final award is attached. It is the Applicant’s case that the Respondent has never applied for the setting aside of the award and assuming that none of the postage correspondences got to them, the Respondent still acknowledged receipt of the award for the first time through their reply to the application dated 24th May 2022.
  8. It is further contended that none of the letters/notices posted have ever been returned and the same were all in the name of the Respondent and clearly described its last known physical address, along Kampala road, and that the Respondent has never notified the Applicant that it surrendered its postal address and as such the Respondent had all along known about the existence of the arbitral proceedings.
  9. Accordingly, the Applicants submit that the instant application is competent and properly brought before this Court having established a prima facie case for recognition and enforcement of the final arbitral award and in strict compliance with statutory prerequisites of Section 36 (3) of the Arbitration Act. It is underscored that the applicant has provided to this Court a certified copy of the Agreement for Supply of Labour dated 2nd June 2012, which contained the arbitration clause that was the basis of the subject arbitration, and a certified copy of the final arbitral award dated 16th September 2019 that resulted therefrom.
  10. On Whether the Final Arbitral Award should be recognized and enforced as a Decree of this Honourable Court, the Applicants submits that the final arbitral award dated 16th September 2019 and prepared by the sole arbitrator in the arbitration subject to this application be recognized and enforced as a decree of this Court because, being the forum of choice by parties who chose to be bound by the outcome,  recognition and enforcement is automatic unless the conditions set out in Section 37 of the Act are met by the respondent.
  11. Reliance was placed on the decision in the case of Lalji Meghji Patel & Co Ltd vs Nature Green Holdings Ltd (2017) eKLR where the court in upholding the applicant’s application for award enforcement held and said:

“The applicant in this matter has presented the court with a domestic arbitral award. The duly certified copy of it and the certified copy of the arbitration agreement has been presented before this court. There are no grounds to vitiate the arbitral award as provided for under section 37 of the Arbitration Act. The objector Donald has not demonstrated that any of the grounds under section 37 do exist to persuade this court to refuse to recognize and enforce the arbitral award. In the case of Tanzania National Roads Agency vs Kudan Sigh Construction Limited Misc. Civil Application No. 171 of 2012 the court held inter alia that:

“Recognition and enforcement of arbitral awards both domestic and foreign is automatic under the provisions of section 36 of the Arbitration Act. The conditions set under section 37 of the Act have not been met to warrant this court not to recognize and enforce the award.”

  1. The Applicant further submits that the final arbitral award should be recognized and enforced as a decree of this court being it’s not contrary to the public policy of Kenya as the award is neither inconsistent with the Constitution nor any other laws of Kenya. The decision of Justice D. S. Majanja in Kenya Technical Teachers College Will Developers & Construction Limited & another (Arbitration Cause E014 of 2021) [2022] KEHC 106 (KLR) is cited where the court while dismissing the respondent’s main argument against the enforcement of the applicant’s award for being contrary to public policy held that;

“An award will be contrary to the public policy of Kenya if it is shown that it was either inconsistent with the Constitution or other laws of Kenya, whether written or unwritten: or inimical to the national interest of Kenya; or contrary to justice and morality. However, it is not every infraction of precedent or misinterpretation of law that falls within the scope of the public policy exception. The public policy exception must have a connotation of national interest and must be interpreted narrowly so as not subsume the other grounds for setting aside (see Christ for All Nations V Apollo Insurance Co Ltd [2002] 2 EA 366 and Mall Developers Limited V Postal Corporation of Kenya ML Misc. No. 26 of 2013 (2014] eKLR)”

  1. It is the Applicant’s position that it has established a case for recognition and enforcement of the final award in accordance with the requirements of Section 36 of the Act and therefore the burden is on the Respondent to demonstrate why the Court should not recognize the award based on the circumstances set out in section 37 of the Act. The Applicant submits that none of the statutory grounds for refusal set out in section 37 of the Arbitration Act apply to the instant application and in any manner, the recognition and enforcement of the final arbitral award is not be contrary to the public policy of Kenya.

Respondent’s Submissions

  1. The Respondent filed submissions dated 6th February 2023 in which it equally identifies two grounds as isolating themselves for determination by the court. To the respondent, the dispute is capable of determination by answering these two questions:-
  2. Whether the Respondent was accorded a reasonable opportunity to be heard and to present its case in the subject arbitration proceedings?
  3. Whether the Application is incurably defective and incompetent for breach of Rules 3 and 5 of the Arbitration Rules, 1997?
  4. On whether the Respondent was accorded the opportunity to be heard and to present its case, the Respondent submits that the right to be heard is a fundamental rule of natural justice which is zealously guarded by the Court. Various authorities, including the Court of Appeal decision in Onyango Oloo vs Attorney General [1986-1989] EA 456 reiterated in the case of Republic vs Kadhis Court & Another Ex-parte Ahmed Duale Osman [2016] eKLR; Invesco Assurance Co. Limited vs Commissioner of Insurance & Another [2017] eKLR; Samura  Engineering Limited vs Don-Wood Co. Limited [2014] eKLR; National Oil Corporation of Kenya Limited vs Prisko Petroleum Network Limited [2014] eKLR; Kenwood Trading Company Limited Leonard Mutua [1997] eKLR; Sadrudin Kurii & another vs Shalimar Limited & 2 others [2008] eKLR; Vishnu Builders and Developers Limited vs Kennedy’s Construction Limited [2022] eKLR all for the proposition that a decision made in violation of the right to be heard is to be set aside.
  5. The Respondent submits that the arbitral procedure adopted in this matter and the proceedings taken contravened provisions of Article 47(1), 50(1) & 159(2) (a) of the 2010 Constitution as well as Sections 19, 20(2), 35(2) (a)(iii) & 37(1)(a)(ii) of the Arbitration Act 1995. It is the Respondent’s case that the arbitral proceedings between the Applicant and the Respondent were commenced in the year 2013 in respect of disputes relating to the Agreement dated 2nd June 2012 under his then Advocates M/s Kibanya and Kamau Associates Advocates and that after the commencement of the arbitration proceedings, there was a falling out between the Respondent and the said M/s Kibanya and Kamau Associates Advocates which resulted in the said Advocates ceasing to act for the him.
  6. The Respondent submits not to have received any further communications relating to the arbitration proceedings soon after the previous Advocates ceased acting for him hence was not aware of any progress in those arbitration proceedings and that two years prior to the hearing date of 16th October 2018, it sold and transferred its business and did not have any physical office at which such service could be effected.
  7. It is contended that contrary to the Applicant’s contention of having served the Respondent with hearing notices and documents that the same were sent by registered post to P.O. Box 78681-00100 Nairobi, a different address from that stated by the Applicant to be the Respondent’s last known postal address being P.O. Box 78681-00507 Nairobi. As such the Respondent indicates that the said hearing notices and documents were therefore not posted to its last-known postal address but to a different one hence could under no circumstances qualify as proper service upon the Respondent.
  8. The Respondent submits that in respect of the hearing date of 17th October 2018 when the arbitration hearing proceeded Ex-parte in his absence, the Applicant as well as the Arbitrator relied on an alleged defective Affidavit of Service sworn by George Ochieng Nyonje of 16th October 2018 to prove service of the relevant hearing notice upon the Respondent pointing paragraph 2 of the said affidavit of service where stated that; “That on 8th October 2018, I received instructions from Mudao and Co. Advocates to serve the Respondent, Jambo Biscuits (K) Ltd in person with the Hearing Notice dated 8th September 2018 (“GNI”), the same coming up on 17th October 2018.” stating that the annexed hearing notice to this affidavit of service is actually dated 8th October 2018, not 8th September 2018 and which also states the Respondent’s postal address as P. O. Box 78681-00100 Nairobi and not P. O. Box 78681-00507 Nairobi.
  9. It is the Respondent’s case that being the applicable law to the said arbitral proceedings under Paragraph 4 of the Award was the Arbitration Act and the Arbitration Rules of the Chartered Institute of Arbitration (herein “CIA Rules”), the Arbitrator by directing the Applicant to serve the Respondent directly with relevant notices of mention and hearing dates for the arbitration proceedings contravened Rule 8(2) as read with Rule 18(g) of the CIA Rules that requires Arbitrator to personally give a written notice of at least 14 days to the Respondent of the hearing date. As such it is the Respondent’s position that the breach of the said Rules 8(2) and 18(g) of the CIA Rules renders the purported Ex-parte arbitral hearing and proceedings conducted on 16th October 2018 as well as the Award resulting therefrom invalid and unenforceable.
  10. The Respondent further submits that the alleged affidavit of service sworn by George Ochieng Nyonje on 16th October 2018 and relied on by both the Applicant and the Arbitrator as proof of service of the hearing notice upon the Respondent was allegedly posted on 8th October 2018 upon receiving instructions from the Applicant’s Advocates on 8th October 2018 to serve the hearing notice and that he proceeded to Industrial Area Post Office (presumably on the same day) to post the same by registered post; and being only (9) days prior to the hearing date of 17th October 2018 which itself is a serious breach of the said Rule 8(2) of the CIA Rules which requires a minimum notice period of 14 days.
  11. It is the Respondent’s submission that despite having had complete defence as well as a counterclaim against the Applicant’s claim, it was unable to present its defence and counterclaim in the arbitral proceedings and that the same was dismissed by the Arbitrator following his absence at the hearing. The Respondent submits that the arbitral proceedings from which the Award emanates were conducted in breach of the rules of natural justice and denial of the Respondent’s right to be heard and defend itself in the arbitration; and for those reasons the Award ought not to be recognised or enforced as sought by the Applicant in the Application.
  12. On whether the Application is incompetent under Rules 4 and 5 of the Arbitration Rules 1997, the Respondent by citing the decision in Samura Engineering Limited vs Don-Wood Co Ltd [2014] eKLR submits that the Applicant did not file the award as required under Rule 4(1) of the Arbitration Rules nor did it serve any notice of such filing upon the Respondent as required under Rule 5. It is the Respondents case that it was unaware of the alleged publication of the Award dated 16th September 2019 by the Arbitrator hence was denied its right to apply for the same to be set aside as it is now time barred from doing so and as such the Application is therefore incurably defective and incompetent for breach of the law.
  13. The Respondent further submit that the Award is contrary to public policy as it is extremely unjust, punitive, oppressive and unfair to the Respondent and amounts to a gross miscarriage of justice; it enables the Applicant to unjustly enrich itself at the Respondent’s expense by awarding the Applicant a sum of money which it is not entitled to, it completely ignores the rules of natural justice, it is a violation of the Respondent's constitutional right to fair administrative and judicial action and it is injurious to the national and economic interest of Kenya as it discourages the creation of a conducive environment for investment in Kenya. In conclusion, the Respondent submits that the Applicant’s Application be dismissed with costs.

Issues, Analysis and Determination

  1. Having considered grounds advanced in support of the Chamber Summons, averments by both the Applicant and the Respondent in the respective affidavits as well as the submissions filed and taken cognizance of the applicable law on recognition and enforcement of arbitration awards under sections 35, 36 and 37 of the Arbitration Act, the court takes the considered view that there exist two pertinent issues for determination in the application. The issues are:
  2. Whether the Application to enforce the final arbitral award is competent and properly before this Honourable Court; and,
  3. Whether the final arbitral award dated 16th September 2019 should be recognized and enforced as a Decree of this Honourable Court.
  4. It is not lost to the court that the parties agreed to arbitration on every dispute that would arise between them and relating to the contract for supply of labour. On that basis there cannot be a challenge on the binding nature of the arbitration upon the respondent. What is disputed is the propriety of the award as regard notice of the proceedings and if the award sits well with public policy in Kenya.
  5. Sections 36 and 37 of the Arbitration Act code the grounds upon which the court may recognise and enforce or decline to recognition and enforcement of an arbitral award.
  6. While section 35 of the Act stipulates when the Court may set aside an arbitral award at the instance of an aggrieved party, section 37, in words which mirror those of section 35, give instances when the court may refuse recognition even in the absence of an application to set aside. One of the grounds for refusal is where the applicant demonstrates that he was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case[1].
  7. In this matter and on the Competence of the Applicant’s Chamber Summons Application dated 14th July 2022, the Respondent asserts and submits that the Application is incompetent under both section 37 as well as Rule 4(1) & 5 of the Arbitration Rules 1997. It is the Respondent’s submission that the Applicant neither filed the award as required under Rule 4(1) of the Arbitration Rules nor did it serve any notice of such filing upon the Respondent as required under Rule 5. The Respondent avers to have been unaware of the alleged publication of the Award dated 16th September 2019 by the Arbitrator hence was denied its right to apply for the same to be set aside. The said Rule 4 and 5 of the Arbitration Rules 1997 provides as follows;

“4. Any party may file an award to the High Court.

5. The party filing the award shall give notice to all parties in the filing of the award giving the date therefore and the cause number and the registry in which it has been filed and shall file an affidavit of service.” 

  1. Th court finds the annexure “DM 8”, being a copy of letter written by the Applicant’s Advocates to the Respondent’s Managing Director on 10th February 2020, to be the only evidence of the information that the arbitral award had been delivered on 16th September 2019 and requesting them to send the total sum of Kshs.8, 111, 151.56 through RTGS within 30 days from 10th February 2020.
  2. The dates above beg the question whether the respondent was indeed given the effective notice as to entitle it exercise the statutory rights under section 35 of the Act. The court finds that the notice was strategically issued late so as to defeat the right to challenge the award within the time limited by the Act
  3. The Respondent contends that the Award is contrary to public policy and in violation of the principles of natural justice. Tritely, public policy must have a connotation of national interest and that a party asserting of it has to point at the illegality on the part of the arbitrator that is likely to infringe the rights of the public. From the evidence on record, the Respondent has not demonstrated to this Court how the decision by the Arbitrator would negatively affect, impact or infringe the rights of third parties and thus offend public policy.
  4. On the grounds raised by the Respondent against the recognition and enforcement under 37 of the Act, it is not in dispute that the arbitral proceedings between the Applicant and the Respondent were commenced in the year 2013. In the proceedings, the respondent was represented by M/s Kibanya and Kamau Associates. The Respondent maintains that soon after the commencement of the arbitration proceedings, there was a falling out between it and the said M/s Kibanya and Kamau Associates which resulted in the said Advocates ceasing to act for it. This has been confirmed by the notice of cessation from acting for the Respondent by the said advocates filed and effected from 20th July 2018.
  5. Soon after the receipt of the said notice of the cessation the arbitrator directed the Applicant to serve the Respondent directly with mention notice for 6th September 2018 to fix a hearing date. On the mention date, the matter was fixed for hearing on 2nd October 2018 but was later adjourned to the 16th of October 2018 and the Arbitrator similarly directed the Applicant to serve hearing notice upon the Respondent. The Applicant presents that on two occasions prior to the mention and hearing and in compliance with the directions from the arbitrator, it effected the service to the Respondent through posting to its last known postal address. It supported that position by the filed affidavit of service.
  6. The Respondent put forth that order as aground of non-recognition by contending that the applicable law, being the Arbitration Act and the Arbitration Rules of the Chartered Institute of Arbitration (CIA Rules), in particular Rule 8(2) as read with Rule 18(g), requires Arbitrator to personally send a written notice of at least 14 days to the Respondent of the hearing date.
  7. The court finds that the arbitrator, by Paragraph 4 of the Award, properly identified the applicable law to the said arbitral proceedings was bound to proceed in strict compliance with such law without deviation as to denigrate on the rights of the parties. In that context it was an error for the arbitrator to pass his obligation on serving the parties to the applicant. That deviation from the law will reflect on the consequences of service by the applicant.
  8. It is pointed out by the Respondent that the filed affidavit of service, sworn by George Ochieng Nyonje on 16th October 2018, and relied on by both the Applicant and the Arbitrator as proof of service of the hearing notice upon the Respondent, did not accord to the respondent sufficient notice as mandated by the law. The affidavit says that posting was done on the 8th October 2018.  Rule 8(2) of the CIA Rules requires that a party be given a minimum notice period of 14 days. In this matter, the hearing date having been set for the 17th October 2018, even if it be taken that the notice was received on the same day, the respondent got a notice of only nine (9) days. That runs afoul the rules and denigrate on the right sought to be furthered by the rules. Put in the context of the agreement between the parties under article 20 of the contract, the respondent was given only 6 days’ notice. It is such failure the law sought to cure by obligating that the arbitrator effects service. The court holds that by failure to serve the respondent, the arbitrator, denied to the respondent the right to be accorded sufficient notice for preparation to present its case.
  9. One of the strongest grounds of objection to the recognition and enforcement of the award is that the respondent was accorded sufficient notice to attend and present its case in the arbitral proceedings under section 35(2)(a)(iii) of the Act. It is the Respondent’s case that upon cessation of acting of his then advocates, it never received any further communications relating to the arbitration proceedings and was never aware of any further progress in those arbitration proceedings.
  10. It further contends that two years prior to the hearing date of 16th October 2018, it sold and transferred the business and did not have any physical office at which such service could be effected. The Applicant does not deny the fact that it never physically served the Respondent at his known premises, instead the Applicant concedes that the decision to serve by posting the notices of the arbitral proceedings to the Respondent’s last known postal address was informed by the futile attempts to directly serve it at its premises.
  11. It is undisputed from the evidence on record that there were service being effected by the Applicant in line with the Arbitrator’s direction in the matter. The question is whether the said service was being posted to the right postal address belonging to the Respondent. Counsels for the Respondent contends that the hearing notices by the Applicant were posted on the registered post of P.O. Box 78681-00100 Nairobi, a different address from that stated by the Applicant to be the Respondent’s last known postal address of P. O. Box 78681-00507 Nairobi. It is the affidavits of service which underscore the destination of the postal mail by stating on oath that it was destined for P O BOX 78681-00100. That is not the contractual address for the respondent and it is thus not right to infer that the mail indeed landed on the hands of the respondent. It matters not that the applicant seeks to correct that mistake in the further Affidavit. It equally matters not that the applicant asserts that it used the last known address of the respondent. Here the address was contractual and there was no liberty to go fishing for other addresses even if associated with the respondent by sources outside the agreement.
  12. The only way to depart from that address was address by the agreement at article 19 which compelled every amendment to be by mutual agreement. No evidence was placed before the arbitrator and before the court that the respondents address was ever amended to justify the service on an address other than the contractual one.
  13. For lack of proper and sufficient notice of the date for hearing of the claim and failure to serve the award timeously, the court finds that there has been sufficient demonstration of a ground to refuse recognition and enforcement. Notice of hearing is a fundamental cog on the right to a fair hearing. Here it is doubtful if the notices were ever received. If not received, then the proceedings progressed in violation of the basic principles of natural justice. Its outcomes cannot, having violated the norms of justice, be said to be just. When unjust, it calls to be made right by just proceedings being undertaken afresh.
  14. The foregoing conclusions irresistibly guides the court to find that the recognition and enforcement cannot be granted but must be declined. The appropriate orders the court finds to yield are that: -
  15. The Applicant’s Chamber Summons Application dated 14th July 2022 is hereby dismissed with the consequence that the award cannot be enforced.
  16. Parties have the liberty to pursue the dispute before another arbitrator.
  17. Because the respondent has succeeded, the Costs of the applications awarded to the Respondent.

Dated, signed and delivered, Virtually, this 11th day of December, 2024

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37 (1) The recognition or enforcement of an arbitral award, irrespective of the state in which it was made, may be refused only;

  1. At the request of the party against whom it is invoked, if that party furnishes to the High Court proof that;
  2. …

(ii)…

(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, ↑

    Insight Management Consultant Limited VS Jambo Biscuits Kenya Limited Insight Management Consultant Limited VS Jambo Biscuits Kenya Limited