1. This Ruling is in respect to a Preliminary Objection raised against an Application seeking to amend an earlier Application (1 st Application) seeking the setting aside of an Arbitral Award. The Applicant is an entity carrying out real estate business and the proceedings arise from alleged failure by the Applicant to complete an Agreement for sale of an Apartment to the Respondents.
2. The 1 st Application, the one seeking setting aside of the Arbitral Award, is the Notice of Motion dated 11/09/2025, filed through Messrs Omwanza & Areba Associates LLP , and supported by the Affidavit of Daniel Ojijo Agili , introduced himself as the Applicant’s Director. The Application is also supported by a list of a whooping, but unnecessarily very lengthy, verbose and repetitive 36 grounds, which also contain legal arguments complete with even a case law thrown in, making it sound more like final Submissions than grounds. As I always advise Advocates, brevity quickly delivering the intending message, rather than length, is the cornerstone of proper drafting of pleadings. Listing a whole 36 grounds, complete with legal arguments, which will still be replicated and repeated in the Supporting Affidavit and again in the Submissions, defies all the basic principles of proper drafting. In this case, employment of a little bit of brevity could have easily reduced the 36 grounds to not more than 5 at most, and still remain as effective.
3. Be that as it may, the Applicant contended that the Arbitral Award said to have been issued on 24/7/2025 was only released to the Respondents to the exclusion of the Applicant, and it is the Respondents’ Advocates who communicated that that they had been issued with the Award. It is also stated that the Arbitration Act at Section 32 sets out the form and content of a final award to be issued including that it should be in writing, signed by the Arbitrator, dated and the juridical seat of Arbitration disclosed, and that a signed copy shall be delivered to each party. According to the Applicant, the Award did not meet these requirements and as such, fell short of the set standard and is for setting aside. He reiterated that the Arbitration Act at Section 32(5) contains the proviso that the Award shall be shared to each party but in this case, the Arbitrator did not serve the Applicant with a copy thereof. He asserted that the portion of the Award served upon the Applicant was two pages only containing the pages detailing the orders made but with no signature, date, seat or name of the Arbitrator. He protested that the Arbitrator has withheld the decision from the Applicant despite requests from the Applicant, which withholding infringes on the Applicant's rights to exercise its rights under Section 35 of the Arbitration Act , and reeks of high malice, and also infringes on the Applicant's right to fair administrative action provided under Article 47 of the Constitution . He urged further that the issuance of an unsigned Award or only two pages thereof and the refusal to declare the seat of the Arbitration renders the Award a nullity, and that issuance of the Award to only one party to the exclusion of the other is also infringement of the Applicant's rights to fair hearing and fair trial. It was also claimed that the Respondents have been aware, from the beginning and signing of the subject Agreement, of the involvement of the chargee bank ( I & M Bank ) which holds the charge over the property, and the Arbitral tribunal did not have jurisdiction to hear and/or determine any action that touches on matters involving the chargee bank, and as such, the institution of the Arbitration, hearing and issuance of the Award without involvement of the chargee bank was a breach of the right to fair hearing and fair trial.
4. In opposing the 1 st Application, the Respondents, through Messrs Musyimi & Co. Advocates , filed the Grounds of Opposition dated 30/09/2025, and also the Replying Affidavit sworn on the same date by the 1 st Respondent, Isaac Mungoma . According to him, the Arbitration proceedings was necessitated by the Applicant's inordinate delays in obtaining the partial discharge and registration of the lease despite demands, that the parties submitted to the Arbitration process before Hon. James Githu , whereupon the Applicant was ordered to pay a deposit of Kshs 116,000/- to facilitate the process which the Applicant failed to comply with, which failure forced the Respondents to pay the deposit on the Respondent’s behalf to enable the matter proceed to hearing. It was deponed that on 9/06/2025, the Arbitrator confirmed the readiness of the Award and its availability for collection upon full settlement of the Arbitration fees within 14 days upon which the Respondents settled their share at the sum of Kshs 137,750/-, but the Applicant again defaulted in paying its share.
5. The Respondents urged further that in the circumstances, the Arbitrator advised that the Respondents could settle the outstanding balance and collect the Award, upon which the Respondent opted to settle the full amount of the Arbitration fees, following which the Arbitrator confirmed that the Award was ready for collection. The deponent stated further that upon collecting the Award, the Respondents’ Advocates, out of courtesy, by a letter informed the Applicant's then Advocates of being in possession of the Award and sought settlement of costs of the Arbitration, prior to releasing the full award to the Applicant. He asserted that, contrary to the Applicant’s contention, the Award is duly signed, stamped, and dated and that what was shared with the Applicant was simply an extract of the tribunal’s findings and orders made in the Award to be released to the Applicant upon settlement of the Arbitration fees. The Respondents also pointed out that Section 32B (3) of the Arbitration Act grants an Arbitrator the right to withhold delivery of an Award pending full settlement of the tribunal’s fees, and as such, the Arbitrator was within his rights to withhold the same as the Applicant had failed to honour its obligation to pay its portion of the fees. He denied that the Award was released to the Applicants exclusion as alleged, but rather, he deponed, the Applicants were at liberty to pay their portion of the fees and collect their copy. It was further urged that despite requesting the Applicants to settle their portion of the costs prior to availing the full Award, the Applicants have either ignored or neglected to make good the demand. On the Applicant’s allegations of infringement of its rights to fair hearing, fair trial or fair administrative action, it was averred that the Applicant was actively involved throughout the Arbitration proceedings as it was afforded the right to be heard and defended the claim, and that, as such, the allegations are a misrepresentation of facts and an attempt to mislead the Court as the Applicant submitted to, and engaged in the proceedings until when the Arbitrator confirmed readiness of the Award for collection. Regarding the allegation that the chargee bank ought to have been joined in the Arbitration proceedings, he stated that the crux of the Arbitration proceedings was the Applicant's breach of its contractual obligations under the sale agreement and as such, there was no cause of action against the chargee bank. He also urged that an Arbitral Award is final and binding on parties and can only be set aside on stringent grounds to be proved by the party seeking its setting aside.
6. Directions were then taken on this 1 st Application all the way to filing and exchange of Submissions and the parties substantially complied. However, before the Application could be determined, the Applicant filed the 2 nd Application, the Notice of Motion dated 10/02/2026. As aforesaid, the 2 nd Application seeks leave to amend the 1 st Application, and, that consequently, the Applicant be allowed to withdraw the Affidavit that had been filed in support of the 1 st Application with a substituted fresh Affidavit. The once again very lengthy and repetitive 15 grounds sounding more like final submissions than grounds, cited for the 2 nd Application include the ground that the 1 st Application was focussed on the portion of the Award that had been shared with the Applicant, and that the Applicant’s inability to access the full Award was caused by financial difficulties faced by the Applicant. It was contended that the 1 st Application did not therefore raise the full remit of the misdirection made by the Arbitrator, that the Applicant finally received the full Award on 21/01/2026 after paying the Arbitrator’s fees, and upon discussing it with its Advocates, found it necessary to amend the Application. It was asserted that the Award went out of the scope of the agreement and/or reference as the Arbitrator issued an order directing the Applicant to issue and allot shares in the management company to the Respondents and to also to other lessees who were not party to the proceedings, nor parties to the Agreement between the Respondents and the Applicant, and to provide a CR 12 Form confirming the same, to reconstitute the board of the management company and add the Apartment owners, and to provide the Respondents with individual electricity meters which matter is not within the control of the Applicant. According to the Applicant therefore, the Arbitrator strayed away from the dispute before him. It was further averred that the parties agreed that the Arbitrator was to issue a reasoned Award but in breach of Section 32(3) of the Arbitration Act , the Arbitrator failed to provide an analysis of the facts and findings, and also the evidence and documents presented before him. The Arbitrator was also faulted for awarding nominal damages on delays where there was no actual damage indicated and for going further to base the damages on the actual contractual price yet the dispute was not for any financial damage but only on the question of time. It was further urged that the failure to issue a reasoned Award leaves the Applicant with no understanding of the findings and quantification of damages and amounts arrived at as nominal damages.
7. In response to this 2 nd Application, the Respondents filed the Notice of Preliminary Objection dated 19/02/2026, the subject of this Ruling, in which it contended that the 2 nd Application is defective as the 1 st Application does not constitute a “ pleading ” and is therefore incapable of amendment under Order 8 Rule 5 of the Civil Procedure Rules . The second limb of the Objection is that the Application offends the provisions of the Section 35(3) of the Arbitration Act which requires that Applications to set aside arbitral Awards be made within 3 months from the date thereof. It was urged further that the Applicant is merely seeking to relitigate matters already determined at the Arbitration, and to delay the Respondent’s right to enforce the Award.
8. The parties then agreed that the Preliminary Objection be heard and determined first, upon which they filed respective Submissions thereon. The Respondent’s Submissions is dated 15/03/2026, while the Applicant’s is dated 27/03/2026. The Respondents also filed what they described as a Rejoinder to Applicant’s Submissions, dated 15/04/2026.
9. I however find no reason to recount the respective Submissions as they basically simply restate what has already been recited above. I may however observe that the Applicant raised the issue that the challenges raised by the Respondents do not constitute proper points of law and as such, do not meet the threshold of a Preliminary Objection. The Applicant, in response to the further claim that the setting aside of the Arbitral Award has been sought after expiry of the 3-months limitation period, also contended that although the Award is said to have been issued on 2/07/2025, the Applicant having received it only on 21/01/2026 and filing the 2 nd Application on 11/09/2026, fully met the 3-months limitation period.
Determination
10. The issues for determination arising from the Preliminary Objection are evidently the following:
i) Whether the contention that the 1 st Application is not a “ pleading ” capable of being amended meets the threshold of what constitutes a Preliminary Objection.
ii) Whether the contention that the prayer to amend the Application by attaching the Arbitral Award breaches the provisions of Section 35(3) of the Arbitration Act for being brought outside the 3-months’ limitation period, is also a matter that meets the threshold of what constitutes a Preliminary Objection.
iii) If so, whether the 1 st Application constitutes a “ pleading ” capable of amendment, and whether the prayer for leave to amend the Application to attach the Award offends Section 35(3) aforesaid, for being brought outside the 3-months limitation period.
11. In answering issues (i) and (ii) , it must be recalled that a Preliminary Objection must raise a pure point of law, and must not require the ascertainment of any disputed fact. This time-honoured principle was established in the celebrated case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, cited with approval by the Supreme Court in Hassan Ali Joho & Another v Suleiman Said Shahbal & 2 Others [2014] eKLR as follows:
“A preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration… A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained, or if what is sought is the exercise of judicial discretion.”
12. Applying the above principles to the 1 st issue, I find that both the contention that amendment of the 1 st Application is not possible in law, and the contention that the attempt to have the Arbitral Award set aside has been brought out of time, easily meet the threshold of a Preliminary Objection as both arise by clear implication out of the pleadings, and facts relating to each are basically uncontested and do not therefore require presentation of further facts or determination thereof. Further, if argued as a preliminary point, either has the potential to entirely dispose of the 2 nd Application. I will therefore proceed to determine the two matters as Preliminary Objections.
13. Regarding the first limb of issue (iii) , I am clear in my mind that there is nothing in the Civil Procedure Rules that bars or prohibits a Notice of Motion or a Chamber Summons from being subject to amendment. Order 8 of the Civil Procedure Rules, focuses on amendment of " pleadings " which the Applicant insists on limiting to only Plaints and Statements of Defence, or only those pleadings initiating or originating an action. I am satisfied that Courts possess wide discretionary powers to allow amendments even to interlocutory or to mid-proceedings pleadings, to ensure that the Court determines the “ real questions in controversy ” . If the drafters of the Civil Procedure Rules intended to omit interlocutory Notices of Motion and Chamber from the ambit of pleadings or Court documents capable of being amended, nothing would have been easier than for them to expressly state so. Although both the Applicants and the Respondents limited their arguments on whether the Notice of Motion can be amended to only the question whether they are “ pleadings ”, I think this is the wrong approach to take. My research indicates that whether or not a Court document is a “ pleading ” has been interpreted depending on the context of what is before the Court for determination at that point. The respective interpretations do not therefore apply to all situations in general. For this reason, whether or not a Notice of Motion or a Chamber is “ pleading ” has attracted conflicting interpretations as each case has been determined on the sole basis of its own facts and circumstances. It is therefore not helpful to simply argue on whether or not a Notice of Motion is a pleading. The more helpful approach in this case is to specifically ask “ whether the 1 st Notice of Motion is a pleading for purposes of amendment ”. Even if it were to be argued that only Applications initiating or originating proceedings, not interlocutory, fall within the meaning of a “ pleading ”, then on the strength of the Supreme Court case of Nathib Jama Adam vs Abdikhaim Osman Mohamed & 3 Others [2014] eKLR , though dealing strictly dealing with an Election Petition, the 1 st Notice of Motion would very well qualify since it is the one that initiated or originated this action. In my own view, just as the Court is empowered to grant leave for amendment of a Plaint or a Statement of Defence, so does the Court have similar powers to amend a Notice of Motion and/or a Chamber Summonses, whether or not it commences proceedings, and whether it is an interlocutory or mid-proceedings Application.
14. Although the Respondents’ Counsel cited the decision of Kasango J in the case of Vijay Kumar Davalji Kanji Gohil v Suresh Mohanlal Fatania & 8 others [2006] eKLR , what he did not also disclose is that the decision was specifically based on the fact that the Plaintiff in that case amended the subject Chamber Summons without seeking the leave of the Court because purportedly, " pleadings had not yet closed ”, and claimed that, as such, he was permitted by law to freely amend the Chamber Summons without the Court’s approval. The Defendants raised a preliminary objection, arguing that a Chamber Summons is not a “ pleading ” and therefore could not be amended in that manner, which objection Kasango J upheld. This is not the position here as the Applicant readily recognizes that leave of the Court is required to amend the Notice of Motion. Kasango J’s interpretation was therefore clearly limited to only the context of the situation that was before her, it was never a general interpretation to apply to all situations.
15. Tuiyott J (as he then was) in the case of Kanuri Limited & 34 Others v Uber Kenya Limited [2017] KEHC 6507 (KLR) , took a different path but still ended up with a determination that mirrors the one I have adopted here. In the case before him, Tuiyott J (as he then was) ruled that an interlocutory Application does not qualify as a “ pleading ” under the Civil Procedure Rules , and as such, Order 8 Rule 1 , which allows amendment to pleadings once without the Court's permission before pleadings close, does not apply to Applications. He then held that because there is no provision equivalent to Order 8 Rule 1 for Applications, amendment to Applications can still be made with the leave of the Court under Section 100 of the Civil Procedure Act , which grants the Court discretionary power to amend any defect or error in any proceeding at any stage to determine the real issue in dispute. Either way therefore, the Applicant would still be covered.
16. In any case, with the 2010 Constitution having introduced Article 159(2)(d), which requires Courts to “ administer justice without undue regard to procedural technicalities ”, substantive justice now prevails over rigid legal forms and rules. By this reason alone, the first limb of issue (iii) must also fail.
17. In respect to the second limb of issue (iii) , namely, the question whether the prayer to amend the 1 st Application is incompetent because it has been brought outside the 3-months limitation period, Section 35(3) of the Arbitration Act is crafted as follows:
“An application for setting aside the arbitral award may not be made after 3 months have lapsed from the date on which the party making that application had received the arbitral award or if a request had ben made under section 34 from the date on which that request had been disposed of by the arbitral award.”
18. In respect to the mode of computation of the 3 months period stipulated above, the Court of Appeal, in the case of Geothermal Development Company Limited v Lantech (Africa) Limited (Civil Appeal E637 of 2024) [2025] KECA 2045 (KLR) stated as follows:
“33. Once an award is signed and parties notified that the same is ready for collection, it is their responsibility to collect the same after settling the arbitrator’s fees. The arbitrator has no obligation to send the signed copy of the award to the parties before his fees are settled. Once notified, it behoves the parties to do the needful and collect the award. Failure by the parties to collect it does not delay or postpone the delivery and the time limited in section 35(3) of the Arbitration Act begins to run. It would be an absurdity to interpret this any other way.
34. Turning to the facts of the case, the parties submit that on 12 th November 2018 the Arbitrator through his letter informed parties that the award had been published in accordance with section 33(1) of the Arbitration Act and that the same may be collected from his chambers upon payment of his attached final fee note. ........................................................................................................
35. Counsel for the appellant therefore submits that from the foregoing it is clear that the notification communicating that the signed award was ready for collection was made on 12 th November 2019. Counsel points out that on that date the Award had not even been published hence the time calculation for purposes of bringing an application ought to start running from 13 th March 2020 when the award was available for collection from the arbitrator.
36. It was submitted by the respondent that assuming that the publication was made only after both parties paid their arbitrator’s fees would be defeating to the arbitral process as parties can take whatever amount of time to make payment. He, therefore, urged the Court to follow those decisions which hold that time is calculated from the date of publication and not the notice after payment of fees and uphold the ruling of the trial court. The respondent maintained that the appellant failed to pay its portion of fees to the arbitrator and that it was the respondent who cleared the entire fees and hence the release of the award by the arbitrator.
37. It is not in dispute that the arbitrator notified the parties that the Award was ready for collection on 12 th November 2019 hence time begun to run from that date, meaning that the appellant ought to have filed the application to set aside by 11 th February 2020 as rightly held by the trial Judge. Counsel for the appellant suggested that since the respondent made an application under section 34 of the Act on 26 th March 2020 which was disposed of on 6 th April 2020, then section 35(3) contemplates that the 3 months’ period commenced when that application was disposed of which means that the 3 months would run until 6 th July 2020.
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40.We reiterate the holding that the 3 months from the date of "notification”, which is when time starts running is not extendable.
41. ........................ The three-month period is absolute, and courts lack jurisdiction to enlarge it once it has lapsed. Any application to set aside filed beyond this period is fatal and cannot be salvaged by equitable arguments or procedural extensions.
42. Our conclusion is that the learned Judge did not err in striking it out for being filed out of time. We agree with her findings. Having properly found that the court was bereft of jurisdiction to entertain the application to set aside the award, the learned Judge could not consider the merits of the application. Nor can we accept the invitation to delve into the merits of the application to determine whether or not there were sufficient grounds to demonstrate that the award ought to have been set aside.
19. In light of the above express holding of the Court of Appeal, I agree with Mr. Kamencu , Counsel for the Respondent, on the position that computation of the 3 months period under Section 35(3) of the Arbitration Act commences from the date of “ notification” , i.e., the date when the Arbitrator notifies the parties that the Award is ready for collection upon payment. That period is also absolute, “ not extendable ”.
20. In this case, it is clear that the Applicant sought the setting aside of the Arbitral award knowing very well that it had not yet accessed the Award to enable the Applicant place it before the Court. As such, the 1 st Application was filed without exhibiting the Arbitral Award, which Award is what in fact formed the substratum of the proceedings the Applicant had initiated. Failure to access the Award is admittedly because the Applicant did not pay its portion of the Arbitrator’s fees, not even the deposit required at the beginning of the proceedings. As a result, it is the Respondents who are said to have paid the full deposit, including the Applicant’s share to at least start off the arbitral process. If true, then it is curious that the Applicant had funds to instruct an Advocate to represent it at the tribunal and to even go further to initiate these proceedings but did not have a cent to pay the Arbitrator. It is also curious that the Applicant made the Court believe that it is the Arbitrator who supplied it with the few pages of the Award, and it was not until the Respondent filed a Replying Affidavit that it became clear that it is in fact the Respondent’s Counsel who, out of courtesy, shared the few pages with the Applicant while demanding reimbursement. It is further curious that the Applicant had also withheld from the Court the material information that the reason why it did not access a copy of the full Award was because it had not paid its share of the Arbitrator’s fees. The Applicant had created the impression that the Arbitrator had simply chosen to discriminate against the Applicant by only supplying a copy to the Respondent. Again, it was not until the Respondent filed their Replying Affidavit that the true picture came out.
21. Be that as it may, the Applicant does not dispute that the Arbitrator notified the parties as early as 2/07/2025 that the Award was ready for collection upon payment of the Arbitrator’s fees. Acting within the 3-months limit, the Applicant on 11/09/2025, properly initiated these proceedings seeking setting aside of the Award but as aforesaid, did not attach a copy of the Award, citing the ground that only a few pages thereof were shared. As observed above, it was again not until 10/02/2026, 5 months later, that the Applicant now sought to amend the Application by attaching the Award, claiming that it has now accessed the same after paying the Arbitrator’s fees.
22. I agree with Mr. Kamencu that in an Application seeking to set aside an Arbitral Award, the Award itself is the foundational document upon which the Court is then invited to exercise its jurisdiction, and as such, the Court must be placed in a position where it can interrogate the contents of the Award to determine whether there are grounds justifying setting aside thereof. An Application seeking the setting aside of an Arbitral Award, if brought without attaching the Award itself, is therefore outrightly fundamentally defective. Although I am not determining this matter on merits as this Ruling is only confined to the Preliminary Objection, the Applicant having now belatedly admitted that the reason it did not attach the Award was because it did not have it as a result of failing to pay its share of the Arbitrator’s fees, it is debatable whether with this admitted ground, the attempt to subsequently introduce the Award, 7 months after the parties had long been notified that the Award was ready for collection can justify the Applicant being allowed to cure the fundamental defect of failing to attach the Award. This question is relevant in light of the Court of Appeal’s recognition in the case of Geothermal Development Company Limited v Lantech (supra) that “ an Arbitrator has no obligation to send the signed copy of the Award to the parties before his fees are settled ”. Was this a self-inflicted wound by the Applicant, and can it be cured by amendment to now belatedly allow the Applicant to attach the Award, which it has now accessed after finally paying its share of the Arbitrator’s fees? I will not however say more lest I be accused of prejudging the Application before it is canvassed on merits.
23. The question at this stage is whether in a case such as herein, where an application seeking to set aside an Arbitral Award has been properly filed within the 3-months limitation period but the Award was itself not been attached, the Court can later, outside the 3-months period, allow the Application to be amended out of time to allow the Applicant to belatedly introduce the Award?
24. In my view , as the original setting aside Application was properly filed and processed within the strict 3-month statutory window stipulated under Section 35(3) of the Arbitration Act , there is nothing that would bar or prohibit the Court from exercising its discretion to allow the Application to be amended out of time to attach the award. I say so because Courts distinguish between a jurisdictional bar (failing to file the actual challenge within 3 months) and a procedural omission (failing to attach a document to a timeously filed challenge). Because the Court already has the valid statutory jurisdiction over the matte
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2. The 1 st Application, the one seeking setting aside of the Arbitral Award, is the Notice of Motion dated 11/09/2025, filed through Messrs Omwanza & Areba Associates LLP , and supported by the Affidavit of Daniel Ojijo Agili , introduced himself as the Applicant’s Director. The Application is also supported by a list of a whooping, but unnecessarily very lengthy, verbose and repetitive 36 grounds, which also contain legal arguments complete with even a case law thrown in, making it sound more like final Submissions than grounds. As I always advise Advocates, brevity quickly delivering the intending message, rather than length, is the cornerstone of proper drafting of pleadings. Listing a whole 36 grounds, complete with legal arguments, which will still be replicated and repeated in the Supporting Affidavit and again in the Submissions, defies all the basic principles of proper drafting. In this case, employment of a little bit of brevity could have easily reduced the 36 grounds to not more than 5 at most, and still remain as effective.
3. Be that as it may, the Applicant contended that the Arbitral Award said to have been issued on 24/7/2025 was only released to the Respondents to the exclusion of the Applicant, and it is the Respondents’ Advocates who communicated that that they had been issued with the Award. It is also stated that the Arbitration Act at Section 32 sets out the form and content of a final award to be issued including that it should be in writing, signed by the Arbitrator, dated and the juridical seat of Arbitration disclosed, and that a signed copy shall be delivered to each party. According to the Applicant, the Award did not meet these requirements and as such, fell short of the set standard and is for setting aside. He reiterated that the Arbitration Act at Section 32(5) contains the proviso that the Award shall be shared to each party but in this case, the Arbitrator did not serve the Applicant with a copy thereof. He asserted that the portion of the Award served upon the Applicant was two pages only containing the pages detailing the orders made but with no signature, date, seat or name of the Arbitrator. He protested that the Arbitrator has withheld the decision from the Applicant despite requests from the Applicant, which withholding infringes on the Applicant's rights to exercise its rights under Section 35 of the Arbitration Act , and reeks of high malice, and also infringes on the Applicant's right to fair administrative action provided under Article 47 of the Constitution . He urged further that the issuance of an unsigned Award or only two pages thereof and the refusal to declare the seat of the Arbitration renders the Award a nullity, and that issuance of the Award to only one party to the exclusion of the other is also infringement of the Applicant's rights to fair hearing and fair trial. It was also claimed that the Respondents have been aware, from the beginning and signing of the subject Agreement, of the involvement of the chargee bank ( I & M Bank ) which holds the charge over the property, and the Arbitral tribunal did not have jurisdiction to hear and/or determine any action that touches on matters involving the chargee bank, and as such, the institution of the Arbitration, hearing and issuance of the Award without involvement of the chargee bank was a breach of the right to fair hearing and fair trial.
4. In opposing the 1 st Application, the Respondents, through Messrs Musyimi & Co. Advocates , filed the Grounds of Opposition dated 30/09/2025, and also the Replying Affidavit sworn on the same date by the 1 st Respondent, Isaac Mungoma . According to him, the Arbitration proceedings was necessitated by the Applicant's inordinate delays in obtaining the partial discharge and registration of the lease despite demands, that the parties submitted to the Arbitration process before Hon. James Githu , whereupon the Applicant was ordered to pay a deposit of Kshs 116,000/- to facilitate the process which the Applicant failed to comply with, which failure forced the Respondents to pay the deposit on the Respondent’s behalf to enable the matter proceed to hearing. It was deponed that on 9/06/2025, the Arbitrator confirmed the readiness of the Award and its availability for collection upon full settlement of the Arbitration fees within 14 days upon which the Respondents settled their share at the sum of Kshs 137,750/-, but the Applicant again defaulted in paying its share.
5. The Respondents urged further that in the circumstances, the Arbitrator advised that the Respondents could settle the outstanding balance and collect the Award, upon which the Respondent opted to settle the full amount of the Arbitration fees, following which the Arbitrator confirmed that the Award was ready for collection. The deponent stated further that upon collecting the Award, the Respondents’ Advocates, out of courtesy, by a letter informed the Applicant's then Advocates of being in possession of the Award and sought settlement of costs of the Arbitration, prior to releasing the full award to the Applicant. He asserted that, contrary to the Applicant’s contention, the Award is duly signed, stamped, and dated and that what was shared with the Applicant was simply an extract of the tribunal’s findings and orders made in the Award to be released to the Applicant upon settlement of the Arbitration fees. The Respondents also pointed out that Section 32B (3) of the Arbitration Act grants an Arbitrator the right to withhold delivery of an Award pending full settlement of the tribunal’s fees, and as such, the Arbitrator was within his rights to withhold the same as the Applicant had failed to honour its obligation to pay its portion of the fees. He denied that the Award was released to the Applicants exclusion as alleged, but rather, he deponed, the Applicants were at liberty to pay their portion of the fees and collect their copy. It was further urged that despite requesting the Applicants to settle their portion of the costs prior to availing the full Award, the Applicants have either ignored or neglected to make good the demand. On the Applicant’s allegations of infringement of its rights to fair hearing, fair trial or fair administrative action, it was averred that the Applicant was actively involved throughout the Arbitration proceedings as it was afforded the right to be heard and defended the claim, and that, as such, the allegations are a misrepresentation of facts and an attempt to mislead the Court as the Applicant submitted to, and engaged in the proceedings until when the Arbitrator confirmed readiness of the Award for collection. Regarding the allegation that the chargee bank ought to have been joined in the Arbitration proceedings, he stated that the crux of the Arbitration proceedings was the Applicant's breach of its contractual obligations under the sale agreement and as such, there was no cause of action against the chargee bank. He also urged that an Arbitral Award is final and binding on parties and can only be set aside on stringent grounds to be proved by the party seeking its setting aside.
6. Directions were then taken on this 1 st Application all the way to filing and exchange of Submissions and the parties substantially complied. However, before the Application could be determined, the Applicant filed the 2 nd Application, the Notice of Motion dated 10/02/2026. As aforesaid, the 2 nd Application seeks leave to amend the 1 st Application, and, that consequently, the Applicant be allowed to withdraw the Affidavit that had been filed in support of the 1 st Application with a substituted fresh Affidavit. The once again very lengthy and repetitive 15 grounds sounding more like final submissions than grounds, cited for the 2 nd Application include the ground that the 1 st Application was focussed on the portion of the Award that had been shared with the Applicant, and that the Applicant’s inability to access the full Award was caused by financial difficulties faced by the Applicant. It was contended that the 1 st Application did not therefore raise the full remit of the misdirection made by the Arbitrator, that the Applicant finally received the full Award on 21/01/2026 after paying the Arbitrator’s fees, and upon discussing it with its Advocates, found it necessary to amend the Application. It was asserted that the Award went out of the scope of the agreement and/or reference as the Arbitrator issued an order directing the Applicant to issue and allot shares in the management company to the Respondents and to also to other lessees who were not party to the proceedings, nor parties to the Agreement between the Respondents and the Applicant, and to provide a CR 12 Form confirming the same, to reconstitute the board of the management company and add the Apartment owners, and to provide the Respondents with individual electricity meters which matter is not within the control of the Applicant. According to the Applicant therefore, the Arbitrator strayed away from the dispute before him. It was further averred that the parties agreed that the Arbitrator was to issue a reasoned Award but in breach of Section 32(3) of the Arbitration Act , the Arbitrator failed to provide an analysis of the facts and findings, and also the evidence and documents presented before him. The Arbitrator was also faulted for awarding nominal damages on delays where there was no actual damage indicated and for going further to base the damages on the actual contractual price yet the dispute was not for any financial damage but only on the question of time. It was further urged that the failure to issue a reasoned Award leaves the Applicant with no understanding of the findings and quantification of damages and amounts arrived at as nominal damages.
7. In response to this 2 nd Application, the Respondents filed the Notice of Preliminary Objection dated 19/02/2026, the subject of this Ruling, in which it contended that the 2 nd Application is defective as the 1 st Application does not constitute a “ pleading ” and is therefore incapable of amendment under Order 8 Rule 5 of the Civil Procedure Rules . The second limb of the Objection is that the Application offends the provisions of the Section 35(3) of the Arbitration Act which requires that Applications to set aside arbitral Awards be made within 3 months from the date thereof. It was urged further that the Applicant is merely seeking to relitigate matters already determined at the Arbitration, and to delay the Respondent’s right to enforce the Award.
8. The parties then agreed that the Preliminary Objection be heard and determined first, upon which they filed respective Submissions thereon. The Respondent’s Submissions is dated 15/03/2026, while the Applicant’s is dated 27/03/2026. The Respondents also filed what they described as a Rejoinder to Applicant’s Submissions, dated 15/04/2026.
9. I however find no reason to recount the respective Submissions as they basically simply restate what has already been recited above. I may however observe that the Applicant raised the issue that the challenges raised by the Respondents do not constitute proper points of law and as such, do not meet the threshold of a Preliminary Objection. The Applicant, in response to the further claim that the setting aside of the Arbitral Award has been sought after expiry of the 3-months limitation period, also contended that although the Award is said to have been issued on 2/07/2025, the Applicant having received it only on 21/01/2026 and filing the 2 nd Application on 11/09/2026, fully met the 3-months limitation period.
Determination
10. The issues for determination arising from the Preliminary Objection are evidently the following:
i) Whether the contention that the 1 st Application is not a “ pleading ” capable of being amended meets the threshold of what constitutes a Preliminary Objection.
ii) Whether the contention that the prayer to amend the Application by attaching the Arbitral Award breaches the provisions of Section 35(3) of the Arbitration Act for being brought outside the 3-months’ limitation period, is also a matter that meets the threshold of what constitutes a Preliminary Objection.
iii) If so, whether the 1 st Application constitutes a “ pleading ” capable of amendment, and whether the prayer for leave to amend the Application to attach the Award offends Section 35(3) aforesaid, for being brought outside the 3-months limitation period.
11. In answering issues (i) and (ii) , it must be recalled that a Preliminary Objection must raise a pure point of law, and must not require the ascertainment of any disputed fact. This time-honoured principle was established in the celebrated case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, cited with approval by the Supreme Court in Hassan Ali Joho & Another v Suleiman Said Shahbal & 2 Others [2014] eKLR as follows:
“A preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration… A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained, or if what is sought is the exercise of judicial discretion.”
12. Applying the above principles to the 1 st issue, I find that both the contention that amendment of the 1 st Application is not possible in law, and the contention that the attempt to have the Arbitral Award set aside has been brought out of time, easily meet the threshold of a Preliminary Objection as both arise by clear implication out of the pleadings, and facts relating to each are basically uncontested and do not therefore require presentation of further facts or determination thereof. Further, if argued as a preliminary point, either has the potential to entirely dispose of the 2 nd Application. I will therefore proceed to determine the two matters as Preliminary Objections.
13. Regarding the first limb of issue (iii) , I am clear in my mind that there is nothing in the Civil Procedure Rules that bars or prohibits a Notice of Motion or a Chamber Summons from being subject to amendment. Order 8 of the Civil Procedure Rules, focuses on amendment of " pleadings " which the Applicant insists on limiting to only Plaints and Statements of Defence, or only those pleadings initiating or originating an action. I am satisfied that Courts possess wide discretionary powers to allow amendments even to interlocutory or to mid-proceedings pleadings, to ensure that the Court determines the “ real questions in controversy ” . If the drafters of the Civil Procedure Rules intended to omit interlocutory Notices of Motion and Chamber from the ambit of pleadings or Court documents capable of being amended, nothing would have been easier than for them to expressly state so. Although both the Applicants and the Respondents limited their arguments on whether the Notice of Motion can be amended to only the question whether they are “ pleadings ”, I think this is the wrong approach to take. My research indicates that whether or not a Court document is a “ pleading ” has been interpreted depending on the context of what is before the Court for determination at that point. The respective interpretations do not therefore apply to all situations in general. For this reason, whether or not a Notice of Motion or a Chamber is “ pleading ” has attracted conflicting interpretations as each case has been determined on the sole basis of its own facts and circumstances. It is therefore not helpful to simply argue on whether or not a Notice of Motion is a pleading. The more helpful approach in this case is to specifically ask “ whether the 1 st Notice of Motion is a pleading for purposes of amendment ”. Even if it were to be argued that only Applications initiating or originating proceedings, not interlocutory, fall within the meaning of a “ pleading ”, then on the strength of the Supreme Court case of Nathib Jama Adam vs Abdikhaim Osman Mohamed & 3 Others [2014] eKLR , though dealing strictly dealing with an Election Petition, the 1 st Notice of Motion would very well qualify since it is the one that initiated or originated this action. In my own view, just as the Court is empowered to grant leave for amendment of a Plaint or a Statement of Defence, so does the Court have similar powers to amend a Notice of Motion and/or a Chamber Summonses, whether or not it commences proceedings, and whether it is an interlocutory or mid-proceedings Application.
14. Although the Respondents’ Counsel cited the decision of Kasango J in the case of Vijay Kumar Davalji Kanji Gohil v Suresh Mohanlal Fatania & 8 others [2006] eKLR , what he did not also disclose is that the decision was specifically based on the fact that the Plaintiff in that case amended the subject Chamber Summons without seeking the leave of the Court because purportedly, " pleadings had not yet closed ”, and claimed that, as such, he was permitted by law to freely amend the Chamber Summons without the Court’s approval. The Defendants raised a preliminary objection, arguing that a Chamber Summons is not a “ pleading ” and therefore could not be amended in that manner, which objection Kasango J upheld. This is not the position here as the Applicant readily recognizes that leave of the Court is required to amend the Notice of Motion. Kasango J’s interpretation was therefore clearly limited to only the context of the situation that was before her, it was never a general interpretation to apply to all situations.
15. Tuiyott J (as he then was) in the case of Kanuri Limited & 34 Others v Uber Kenya Limited [2017] KEHC 6507 (KLR) , took a different path but still ended up with a determination that mirrors the one I have adopted here. In the case before him, Tuiyott J (as he then was) ruled that an interlocutory Application does not qualify as a “ pleading ” under the Civil Procedure Rules , and as such, Order 8 Rule 1 , which allows amendment to pleadings once without the Court's permission before pleadings close, does not apply to Applications. He then held that because there is no provision equivalent to Order 8 Rule 1 for Applications, amendment to Applications can still be made with the leave of the Court under Section 100 of the Civil Procedure Act , which grants the Court discretionary power to amend any defect or error in any proceeding at any stage to determine the real issue in dispute. Either way therefore, the Applicant would still be covered.
16. In any case, with the 2010 Constitution having introduced Article 159(2)(d), which requires Courts to “ administer justice without undue regard to procedural technicalities ”, substantive justice now prevails over rigid legal forms and rules. By this reason alone, the first limb of issue (iii) must also fail.
17. In respect to the second limb of issue (iii) , namely, the question whether the prayer to amend the 1 st Application is incompetent because it has been brought outside the 3-months limitation period, Section 35(3) of the Arbitration Act is crafted as follows:
“An application for setting aside the arbitral award may not be made after 3 months have lapsed from the date on which the party making that application had received the arbitral award or if a request had ben made under section 34 from the date on which that request had been disposed of by the arbitral award.”
18. In respect to the mode of computation of the 3 months period stipulated above, the Court of Appeal, in the case of Geothermal Development Company Limited v Lantech (Africa) Limited (Civil Appeal E637 of 2024) [2025] KECA 2045 (KLR) stated as follows:
“33. Once an award is signed and parties notified that the same is ready for collection, it is their responsibility to collect the same after settling the arbitrator’s fees. The arbitrator has no obligation to send the signed copy of the award to the parties before his fees are settled. Once notified, it behoves the parties to do the needful and collect the award. Failure by the parties to collect it does not delay or postpone the delivery and the time limited in section 35(3) of the Arbitration Act begins to run. It would be an absurdity to interpret this any other way.
34. Turning to the facts of the case, the parties submit that on 12 th November 2018 the Arbitrator through his letter informed parties that the award had been published in accordance with section 33(1) of the Arbitration Act and that the same may be collected from his chambers upon payment of his attached final fee note. ........................................................................................................
35. Counsel for the appellant therefore submits that from the foregoing it is clear that the notification communicating that the signed award was ready for collection was made on 12 th November 2019. Counsel points out that on that date the Award had not even been published hence the time calculation for purposes of bringing an application ought to start running from 13 th March 2020 when the award was available for collection from the arbitrator.
36. It was submitted by the respondent that assuming that the publication was made only after both parties paid their arbitrator’s fees would be defeating to the arbitral process as parties can take whatever amount of time to make payment. He, therefore, urged the Court to follow those decisions which hold that time is calculated from the date of publication and not the notice after payment of fees and uphold the ruling of the trial court. The respondent maintained that the appellant failed to pay its portion of fees to the arbitrator and that it was the respondent who cleared the entire fees and hence the release of the award by the arbitrator.
37. It is not in dispute that the arbitrator notified the parties that the Award was ready for collection on 12 th November 2019 hence time begun to run from that date, meaning that the appellant ought to have filed the application to set aside by 11 th February 2020 as rightly held by the trial Judge. Counsel for the appellant suggested that since the respondent made an application under section 34 of the Act on 26 th March 2020 which was disposed of on 6 th April 2020, then section 35(3) contemplates that the 3 months’ period commenced when that application was disposed of which means that the 3 months would run until 6 th July 2020.
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40.We reiterate the holding that the 3 months from the date of "notification”, which is when time starts running is not extendable.
41. ........................ The three-month period is absolute, and courts lack jurisdiction to enlarge it once it has lapsed. Any application to set aside filed beyond this period is fatal and cannot be salvaged by equitable arguments or procedural extensions.
42. Our conclusion is that the learned Judge did not err in striking it out for being filed out of time. We agree with her findings. Having properly found that the court was bereft of jurisdiction to entertain the application to set aside the award, the learned Judge could not consider the merits of the application. Nor can we accept the invitation to delve into the merits of the application to determine whether or not there were sufficient grounds to demonstrate that the award ought to have been set aside.
19. In light of the above express holding of the Court of Appeal, I agree with Mr. Kamencu , Counsel for the Respondent, on the position that computation of the 3 months period under Section 35(3) of the Arbitration Act commences from the date of “ notification” , i.e., the date when the Arbitrator notifies the parties that the Award is ready for collection upon payment. That period is also absolute, “ not extendable ”.
20. In this case, it is clear that the Applicant sought the setting aside of the Arbitral award knowing very well that it had not yet accessed the Award to enable the Applicant place it before the Court. As such, the 1 st Application was filed without exhibiting the Arbitral Award, which Award is what in fact formed the substratum of the proceedings the Applicant had initiated. Failure to access the Award is admittedly because the Applicant did not pay its portion of the Arbitrator’s fees, not even the deposit required at the beginning of the proceedings. As a result, it is the Respondents who are said to have paid the full deposit, including the Applicant’s share to at least start off the arbitral process. If true, then it is curious that the Applicant had funds to instruct an Advocate to represent it at the tribunal and to even go further to initiate these proceedings but did not have a cent to pay the Arbitrator. It is also curious that the Applicant made the Court believe that it is the Arbitrator who supplied it with the few pages of the Award, and it was not until the Respondent filed a Replying Affidavit that it became clear that it is in fact the Respondent’s Counsel who, out of courtesy, shared the few pages with the Applicant while demanding reimbursement. It is further curious that the Applicant had also withheld from the Court the material information that the reason why it did not access a copy of the full Award was because it had not paid its share of the Arbitrator’s fees. The Applicant had created the impression that the Arbitrator had simply chosen to discriminate against the Applicant by only supplying a copy to the Respondent. Again, it was not until the Respondent filed their Replying Affidavit that the true picture came out.
21. Be that as it may, the Applicant does not dispute that the Arbitrator notified the parties as early as 2/07/2025 that the Award was ready for collection upon payment of the Arbitrator’s fees. Acting within the 3-months limit, the Applicant on 11/09/2025, properly initiated these proceedings seeking setting aside of the Award but as aforesaid, did not attach a copy of the Award, citing the ground that only a few pages thereof were shared. As observed above, it was again not until 10/02/2026, 5 months later, that the Applicant now sought to amend the Application by attaching the Award, claiming that it has now accessed the same after paying the Arbitrator’s fees.
22. I agree with Mr. Kamencu that in an Application seeking to set aside an Arbitral Award, the Award itself is the foundational document upon which the Court is then invited to exercise its jurisdiction, and as such, the Court must be placed in a position where it can interrogate the contents of the Award to determine whether there are grounds justifying setting aside thereof. An Application seeking the setting aside of an Arbitral Award, if brought without attaching the Award itself, is therefore outrightly fundamentally defective. Although I am not determining this matter on merits as this Ruling is only confined to the Preliminary Objection, the Applicant having now belatedly admitted that the reason it did not attach the Award was because it did not have it as a result of failing to pay its share of the Arbitrator’s fees, it is debatable whether with this admitted ground, the attempt to subsequently introduce the Award, 7 months after the parties had long been notified that the Award was ready for collection can justify the Applicant being allowed to cure the fundamental defect of failing to attach the Award. This question is relevant in light of the Court of Appeal’s recognition in the case of Geothermal Development Company Limited v Lantech (supra) that “ an Arbitrator has no obligation to send the signed copy of the Award to the parties before his fees are settled ”. Was this a self-inflicted wound by the Applicant, and can it be cured by amendment to now belatedly allow the Applicant to attach the Award, which it has now accessed after finally paying its share of the Arbitrator’s fees? I will not however say more lest I be accused of prejudging the Application before it is canvassed on merits.
23. The question at this stage is whether in a case such as herein, where an application seeking to set aside an Arbitral Award has been properly filed within the 3-months limitation period but the Award was itself not been attached, the Court can later, outside the 3-months period, allow the Application to be amended out of time to allow the Applicant to belatedly introduce the Award?
24. In my view , as the original setting aside Application was properly filed and processed within the strict 3-month statutory window stipulated under Section 35(3) of the Arbitration Act , there is nothing that would bar or prohibit the Court from exercising its discretion to allow the Application to be amended out of time to attach the award. I say so because Courts distinguish between a jurisdictional bar (failing to file the actual challenge within 3 months) and a procedural omission (failing to attach a document to a timeously filed challenge). Because the Court already has the valid statutory jurisdiction over the matte
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