'1.Before me for determination is a notice of motion dated 7th October 2023 brought pursuant to section 36 of the Arbitration Act no 4 of 1995 and sections 1A, 1B and 3A of the Civil Procedure Act cap 21 .
2. The applicant herein prays for orders THAT;
1. Final Award prepared and made by KENNETH KIREMA MIRITI, MCIArb Sole Arbitrator dated 6th June, 2022 (“the Final Award”) and published to the parties on 28th February, 2023 be recognized, adopted and enforced as a Decree of this Court.
2. costs of this application as well as legal costs incurred by the Claimant in pursuing the claim against the Respondent at the Arbitral Tribunal as awarded by the Arbitrator be provided for.
3. WHICH APPLICATION is based on the annexed affidavit of DR. ANIL R. TAILOR the nature of the case, annextures thereto and on the following grounds; -
1) That the Arbitral Tribunal prepared and made the Final Award dated 6th June, 2022 and published to the parties on 28th February, 2023.
2) That the Arbitral Tribunal after preparing and making the Final Award dated 6th June, 2022 withheld the delivery of the award to parties on the account that the Respondent had not paid its share of the Arbitral Tribunal fees and expenses.
3) That despite several reminders to the Respondent to settle the same, the Respondent did not and forcing the Applicant to settle the full fees and expenses of the Arbitral Tribunal and the Final Award was then published to the parties on 28th February, 2023.
4) That the Final Award is in favour of the Applicant be recognized, adopted and enforced as a Decree of this Court in favour of the Applicant.
5) That there is no application by the Respondent for setting aside the Final Award under Section 35 of the Arbitration Act (hereinafter referred to as the “Act”).
6) That similarly there is no application by either party for correction and interpretation of Arbitral Award or additional award under Section 34 of the Act
7) That the Respondent is unlikely to suffer prejudice if the Final Award is recognized, adopted and enforced as a Decree.
8) That conversely it is the Applicant who is likely to suffer great prejudice if the Final Award is not recognized, adopted and enforced as a Decree
9) That for the ends of justice and fair play
4. The application is supported by a supporting affidavit by one Dr Anil R Tailor, a director and chairman of the board of directors of the applicant company with the authority by the board of directors to swear the affidavit on behalf of the company. He deponed that the Applicant signed a Lease Agreement with GESIMA FARMERS CO-OPERATIVE LTD dated 2 February, 2016, for a Lease period of 25 years with respect to LR. KISII MUNICIPALITY/BLOCK III/132, in which the Applicant being a Lessee, on the terms and conditions of the said Lease Agreement, Constructed a Multimillion modern commercial 4 storey building for sub-leasing to third parties (Tenants).
5. It is the applicant’s case that by a Sub-Lease Agreement in writing dated 30th October, 2018, the Applicant (Lessor) let to the Respondent (Lessce) the whole of the frontage on the ground floor in the building hereinafter referred to the (Demised premises) on LR. KISII MUNICIPALITY/BLOCK III/132, situated and known as the "Place" in Kisii Municipality, along Moi Avenue for a term of six (6) years with effect from 1st November 2018 to 31st October, 2024 with rental premises quarterly. (Copy of the Sub-Lease Agreement is annexed and marked ART2.)
6. The Respondent took occupation of the Premises and with Consent of the Directors of Applicant, the Respondent entered into Sub-Leases with Sub-Tenants namely; -
(a) Goodlife Pharmacy (k) Ltd
(b) Optica Limited
(c) James Okeno Omwamba (Mpesa Shop)
and the Respondent retained the part of the Demised premises in which it was Selling Bata Shoe Kenya PLC Products under a Management Agreement between the Respondent and Bata Shoe Kenya PLC in 2020, the Respondent fell into arrears of rent of Kshs 1,764,000, despite its said Sub-Tenants paying rents to it promptly and without being in arrears of rent with the Respondent. as at February 2021, the arrears of rent had accumulated to Kshs 2,542,000 and this prompted the Directors of the Respondent to engage me on several occasions with empty promises to settle the said arrears of rent. the Respondent did not remedy the default of being in rent arrears the4 sum of Kshs 2,542,000 in accordance with the provisions of Clause 5 (b) of the said Sub-Lease Agreement and upon Notice to the Respondent, the Applicant was entitled to re-entry upon the Demised premises and re-possess and enjoy the demised premises upon determination thereof.
6. Clause 6 of the said Sub-Lease Agreement provided for all questions in dispute between the parties and all claims for Compensation not mutually settled and agreed between the parties, be referred to arbitration by a single arbitrator to be appointed in default of agreement by the parties, by the Chairman for the time being of the Chartered institute of Arbitration (Kenya Branch) and every award made und1995. said Clause shall be under the provisions of the ten COURT VIL
7. The Chairman, Chartered Institute of Arbitrators (ClArb) Kenya Branch, appointed Mr. Kenneth K. Miriti, single Arbitrator who heard the parties after the preliminaries were complied with. The Respondent failed to pay its share of the Arbitral Tribunal fees and expenses despite several reminders by the Arbitral Tribunal, thus prompting the Arbitral Tribunal to withhold the delivery of the Final Award made on 6th June, 2022,
8. This forced the Applicant to pay the Arbitral fees and expenses on 20th February, 2023. The Arbitral Tribunal published the Final Award on 28th February, 2023 vide his email to the Applicants current Advocates on record dated 28th February, 2023. The award was in favour of the applicant and specifically provided as follows; -‘’The Respondent shall pay to the Claimant the sum of Kenya Shillings One Million, Six Hundred and Forty Five Thousand, Two Hundred only (Kshs 1,645,200.00). The Respondent shall pay for the Claimant 15% per month penalty Interest calculated on simple interest basis w.e.f 1 June 2021, until payment in full. The Respondent shall pay to the Claimant the costs of this arbitral proceedings being;-Kenya Shillings two hundred and ninety seven trend hundred eighty seven and cents fifty (297,287.50) being deposit of fees and expenses of the arbitral tribunal paid by the The Claimant, together with any other amounts that may be paid by the Claimant in satisfaction of the arbitrator final invoice, to enable it take up the Award. … ‘’
9. The applicant deponed that the Respondent is unlikely to suffer any prejudice if the Final Award is recognized, adopted and enforced as a Decree in this case. conversely, it''s him who is likely to suffer great prejudice if the final Award is not recognized, adopted and enforced as a Decree herein.
10. I have considered the application before me , the annexures , the issue for determination is whether the applicant has met the threshold for grant of orders sought.
Analysis and determination
11. According to section 36 (1) of the Arbitration Act, for a domestic arbitral award to be recognised, the party seeking to enforce such an award has to make an application, in writing, for adoption to the High Court.
12. Section 36 (3) of the Act provides that a party relying on an arbitral award or applying for its enforcement must furnish the court with the following:
i. The original arbitral award or a duly certified copy of it;
ii. The original arbitration agreement or a duly certified copy of it;
13. It is not guaranteed that once an application is made in accordance with section 36 of the Act, it will be automatically recognised and adopted as an order of the court. The court may refuse to enforce an arbitral award if the party against whom it is to be enforced proves to the court that:
a. The party to the arbitral agreement was under some incapacity;
b. 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;
c. 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 or her case;
d. The arbitral award deals with a dispute not contemplated by or not falling within the terms of the reference to arbitration.
e. The arbitral award contained matters beyond the scope of the arbitral agreement.
f. 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;
g. 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;
h. The making of the arbitral award was induced or affected by fraud, bribery, corruption or undue influence.
14. Additionally, the High Court will not recognise an arbitral award if:
a. The subject matter of the dispute is not capable of settlement by arbitration under the law of Kenya. An example of a matter that cannot be arbitrated in Kenya is criminal matters.
b. The recognition or enforcement of the arbitral award would be contrary to the public policy of Kenya.
15. I have carefully perused certified copy of the final arbitration award and the certified copy of the Arbitration agreement herein . The award is not challenged and it complies with section 36 of the Arbitration Act . I have no reasons to refuse the adoption of the award , I therefore make the following orders;
a. The duly certified Final Arbitral award dated 6th June 2022 is hereby adopted as judgement of this court .
b. The costs of this application and costs awarded by the arbitrator to the respondent.
c. It is so ordered .
T.A ODERA
JUDGE
22.10.25
DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 23RD DAY OF OCTOBER 2025 IN THE PRESENCE OF J . BUNDE FOR THE FOR THE APPLICANT . N/A FOR RESPONDENT . CA KIPCHIRCHIR
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2. The applicant herein prays for orders THAT;
1. Final Award prepared and made by KENNETH KIREMA MIRITI, MCIArb Sole Arbitrator dated 6th June, 2022 (“the Final Award”) and published to the parties on 28th February, 2023 be recognized, adopted and enforced as a Decree of this Court.
2. costs of this application as well as legal costs incurred by the Claimant in pursuing the claim against the Respondent at the Arbitral Tribunal as awarded by the Arbitrator be provided for.
3. WHICH APPLICATION is based on the annexed affidavit of DR. ANIL R. TAILOR the nature of the case, annextures thereto and on the following grounds; -
1) That the Arbitral Tribunal prepared and made the Final Award dated 6th June, 2022 and published to the parties on 28th February, 2023.
2) That the Arbitral Tribunal after preparing and making the Final Award dated 6th June, 2022 withheld the delivery of the award to parties on the account that the Respondent had not paid its share of the Arbitral Tribunal fees and expenses.
3) That despite several reminders to the Respondent to settle the same, the Respondent did not and forcing the Applicant to settle the full fees and expenses of the Arbitral Tribunal and the Final Award was then published to the parties on 28th February, 2023.
4) That the Final Award is in favour of the Applicant be recognized, adopted and enforced as a Decree of this Court in favour of the Applicant.
5) That there is no application by the Respondent for setting aside the Final Award under Section 35 of the Arbitration Act (hereinafter referred to as the “Act”).
6) That similarly there is no application by either party for correction and interpretation of Arbitral Award or additional award under Section 34 of the Act
7) That the Respondent is unlikely to suffer prejudice if the Final Award is recognized, adopted and enforced as a Decree.
8) That conversely it is the Applicant who is likely to suffer great prejudice if the Final Award is not recognized, adopted and enforced as a Decree
9) That for the ends of justice and fair play
4. The application is supported by a supporting affidavit by one Dr Anil R Tailor, a director and chairman of the board of directors of the applicant company with the authority by the board of directors to swear the affidavit on behalf of the company. He deponed that the Applicant signed a Lease Agreement with GESIMA FARMERS CO-OPERATIVE LTD dated 2 February, 2016, for a Lease period of 25 years with respect to LR. KISII MUNICIPALITY/BLOCK III/132, in which the Applicant being a Lessee, on the terms and conditions of the said Lease Agreement, Constructed a Multimillion modern commercial 4 storey building for sub-leasing to third parties (Tenants).
5. It is the applicant’s case that by a Sub-Lease Agreement in writing dated 30th October, 2018, the Applicant (Lessor) let to the Respondent (Lessce) the whole of the frontage on the ground floor in the building hereinafter referred to the (Demised premises) on LR. KISII MUNICIPALITY/BLOCK III/132, situated and known as the "Place" in Kisii Municipality, along Moi Avenue for a term of six (6) years with effect from 1st November 2018 to 31st October, 2024 with rental premises quarterly. (Copy of the Sub-Lease Agreement is annexed and marked ART2.)
6. The Respondent took occupation of the Premises and with Consent of the Directors of Applicant, the Respondent entered into Sub-Leases with Sub-Tenants namely; -
(a) Goodlife Pharmacy (k) Ltd
(b) Optica Limited
(c) James Okeno Omwamba (Mpesa Shop)
and the Respondent retained the part of the Demised premises in which it was Selling Bata Shoe Kenya PLC Products under a Management Agreement between the Respondent and Bata Shoe Kenya PLC in 2020, the Respondent fell into arrears of rent of Kshs 1,764,000, despite its said Sub-Tenants paying rents to it promptly and without being in arrears of rent with the Respondent. as at February 2021, the arrears of rent had accumulated to Kshs 2,542,000 and this prompted the Directors of the Respondent to engage me on several occasions with empty promises to settle the said arrears of rent. the Respondent did not remedy the default of being in rent arrears the4 sum of Kshs 2,542,000 in accordance with the provisions of Clause 5 (b) of the said Sub-Lease Agreement and upon Notice to the Respondent, the Applicant was entitled to re-entry upon the Demised premises and re-possess and enjoy the demised premises upon determination thereof.
6. Clause 6 of the said Sub-Lease Agreement provided for all questions in dispute between the parties and all claims for Compensation not mutually settled and agreed between the parties, be referred to arbitration by a single arbitrator to be appointed in default of agreement by the parties, by the Chairman for the time being of the Chartered institute of Arbitration (Kenya Branch) and every award made und1995. said Clause shall be under the provisions of the ten COURT VIL
7. The Chairman, Chartered Institute of Arbitrators (ClArb) Kenya Branch, appointed Mr. Kenneth K. Miriti, single Arbitrator who heard the parties after the preliminaries were complied with. The Respondent failed to pay its share of the Arbitral Tribunal fees and expenses despite several reminders by the Arbitral Tribunal, thus prompting the Arbitral Tribunal to withhold the delivery of the Final Award made on 6th June, 2022,
8. This forced the Applicant to pay the Arbitral fees and expenses on 20th February, 2023. The Arbitral Tribunal published the Final Award on 28th February, 2023 vide his email to the Applicants current Advocates on record dated 28th February, 2023. The award was in favour of the applicant and specifically provided as follows; -‘’The Respondent shall pay to the Claimant the sum of Kenya Shillings One Million, Six Hundred and Forty Five Thousand, Two Hundred only (Kshs 1,645,200.00). The Respondent shall pay for the Claimant 15% per month penalty Interest calculated on simple interest basis w.e.f 1 June 2021, until payment in full. The Respondent shall pay to the Claimant the costs of this arbitral proceedings being;-Kenya Shillings two hundred and ninety seven trend hundred eighty seven and cents fifty (297,287.50) being deposit of fees and expenses of the arbitral tribunal paid by the The Claimant, together with any other amounts that may be paid by the Claimant in satisfaction of the arbitrator final invoice, to enable it take up the Award. … ‘’
9. The applicant deponed that the Respondent is unlikely to suffer any prejudice if the Final Award is recognized, adopted and enforced as a Decree in this case. conversely, it''s him who is likely to suffer great prejudice if the final Award is not recognized, adopted and enforced as a Decree herein.
10. I have considered the application before me , the annexures , the issue for determination is whether the applicant has met the threshold for grant of orders sought.
Analysis and determination
11. According to section 36 (1) of the Arbitration Act, for a domestic arbitral award to be recognised, the party seeking to enforce such an award has to make an application, in writing, for adoption to the High Court.
12. Section 36 (3) of the Act provides that a party relying on an arbitral award or applying for its enforcement must furnish the court with the following:
i. The original arbitral award or a duly certified copy of it;
ii. The original arbitration agreement or a duly certified copy of it;
13. It is not guaranteed that once an application is made in accordance with section 36 of the Act, it will be automatically recognised and adopted as an order of the court. The court may refuse to enforce an arbitral award if the party against whom it is to be enforced proves to the court that:
a. The party to the arbitral agreement was under some incapacity;
b. 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;
c. 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 or her case;
d. The arbitral award deals with a dispute not contemplated by or not falling within the terms of the reference to arbitration.
e. The arbitral award contained matters beyond the scope of the arbitral agreement.
f. 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;
g. 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;
h. The making of the arbitral award was induced or affected by fraud, bribery, corruption or undue influence.
14. Additionally, the High Court will not recognise an arbitral award if:
a. The subject matter of the dispute is not capable of settlement by arbitration under the law of Kenya. An example of a matter that cannot be arbitrated in Kenya is criminal matters.
b. The recognition or enforcement of the arbitral award would be contrary to the public policy of Kenya.
15. I have carefully perused certified copy of the final arbitration award and the certified copy of the Arbitration agreement herein . The award is not challenged and it complies with section 36 of the Arbitration Act . I have no reasons to refuse the adoption of the award , I therefore make the following orders;
a. The duly certified Final Arbitral award dated 6th June 2022 is hereby adopted as judgement of this court .
b. The costs of this application and costs awarded by the arbitrator to the respondent.
c. It is so ordered .
T.A ODERA
JUDGE
22.10.25
DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 23RD DAY OF OCTOBER 2025 IN THE PRESENCE OF J . BUNDE FOR THE FOR THE APPLICANT . N/A FOR RESPONDENT . CA KIPCHIRCHIR
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