Introduction
1. The Applicant, NAR Enterprises Limited, has by an application dated 16th April 2024 moved this Court under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules seeking review of the ruling delivered on 12th May 2023, which dismissed its challenge to an arbitral award.
2. The application is premised on the grounds on its face, and is also supported by the affidavit dated 16th April, 2024, sworn by Malkit Singh, a director of the Applicant
3. The Respondent, Africa Reit Limited, opposes the application vide a replying affidavit dated 10th June 2025 by Ms. Joyce Wanjiru Ndungu, the Respondent’s Finance Operations Director.
4. The central question is whether this Court has jurisdiction to entertain a review application in respect of an arbitral award, given the provisions of the Arbitration Act, 1995.
Background
5. The facts leading to the instant application are that the parties entered into a construction contract under which the Applicant undertook specified works for the Respondent. A salient term (Clause 25(3)(c)) provided that payment for the works was conditional upon issuance of a notice or certificate of completion by the project architect.
6. The contract was subsequently terminated. At termination, the parties undertook a mutual valuation of the works performed by the Applicant, and, per the Applicant’s case, the amounts were not in dispute. The architect did not issue a completion certificate, and the Respondent did not remit payment.
7. The Applicant commenced arbitration seeking payment of the valued sums. The Respondent raised a preliminary objection that the claim was time-barred. The Arbitrator upheld the objection and struck out the claim. In doing so, the Arbitrator observed that he was unable to determine when the cause of action arose but nonetheless concluded that the claim was out of time.
8. The Applicant moved the High Court to set aside the award. By ruling dated 12th May 2023, the Court dismissed the application and sustained the award, agreeing that the claim was statute-barred.
9. The present application seeks review of that ruling on grounds of error apparent on the face of the record and sufficient reason in the interests of justice. The Applicant prays that the ruling and the arbitral award be set aside and that a new arbitrator be appointed to determine the dispute on the merits.
10. The Application was canvassed by way of written submissions. The Applicant through the law firm of Wanza Kivindu & Co. Advocates filed submissions dated 30th July 2025, whilst the Respondent filed theirs dated 10th September 2025 through the law firm of Waithaka & Associates Advocates.
Applicant’s Submissions
11. The Applicant contended that the arbitral award striking out its claim as time-barred was erroneous. It submitted that Clause 25(3)(c) of the construction contract expressly made payment conditional upon issuance of a certificate of completion by the project architect. Since no such certificate has ever been issued, the Applicant argues that no cause of action for payment had crystallized, and limitation under Section 4(1) of the Limitation of Actions Act could not begin to run.
12. The Applicant emphasized that the Arbitrator himself acknowledged that he was unable to determine when the cause of action arose, yet paradoxically proceeded to dismiss the claim as statute-barred. The Court, in upholding that decision, repeated the same error. The Applicant submits that this constitutes an error apparent on the face of the record.
13. Further, the Applicant urged that sufficient reason exists to warrant review in the interests of justice. It maintained that by disregarding the contractual condition precedent, both the Arbitrator and the Court effectively rewrote the parties’ bargain, depriving the Applicant of payment for works duly performed and valued, while the Respondent continues to enjoy the benefit of the Applicant’s performance without compensation, which, in the Applicant’s view, amounts to unjust enrichment.
14. The Applicant relied on authorities including National Bank of Kenya Ltd v Ndungu Njau [1997] eKLR and Muyodi v ICDCI [2006] 1 EA 243, to underscore that review lies where there is a glaring error or omission leading to miscarriage of justice.
15. Consequently, the Applicant prays that the ruling of 12th May 2023 be reviewed, the arbitral award set aside, and a new arbitrator appointed to determine the dispute on its merits.
Respondent’s Submissions
16. The Respondent oppose the application, contending that it is misconceived and amounts to an appeal disguised as a review. It submits that the Arbitration Act, 1995 is a complete code governing arbitral matters, and that review is not one of the instances in which the Court may intervene. Sections 10 and 32A of the Act limit court intervention and declare arbitral awards final and binding, save for the narrow grounds of setting aside under Section 35.
17. The Respondent argues that the issue of limitation was squarely before the Arbitrator, who found the claim time-barred, and this Court in its ruling of 12th May 2023 upheld that finding. The Applicant’s contention that the cause of action had not accrued until issuance of the architect’s certificate is, in the Respondent’s view, an attempt to circumvent statutory limitation. It submits that limitation runs from breach or termination of the contract, not from issuance of a certificate which the Applicant itself failed to procure.
18. The Respondent maintains that the Applicant has not demonstrated discovery of new evidence, error apparent on the face of the record, or sufficient reason to warrant review. It relies on authorities such as Anne Mumbi Hinga v Victoria Njoki Gathara [2009] eKLR and Nyutu Agrovet Ltd v Airtel Networks Kenya Ltd [2019] eKLR, to emphasize that arbitral awards are final and binding, and that courts must respect the principle of non-intervention except as provided by the Act.
19. The Respondent therefore urged the Court to dismiss the application with costs, reiterating that review is not available in arbitral matters and that the Applicant’s grievance, if any, lies outside the statutory framework.
Analysis and Determination
20. I have considered the Application, the response thereto, the applicable law, and the written submissions filed by both parties. I find that the only issue for determination in the present application is; whether this Court has jurisdiction to entertain the application in light of Sections 10, 32A, and 35 of the Arbitration Act.
21. Section 10 of the Arbitration Act provides that: “Except as provided in this Act, no court shall intervene in matters governed by this Act.”
22. The above provision is categorical. It ousts the jurisdiction of the Court to intervene in arbitral proceedings except in the specific instances expressly provided for in the Act.
23. Further, Section 32A of the Act reinforces the above principle by declaring that:
“Except as provided in this Act, an arbitral award shall be final and binding upon the parties, and no recourse is available against the award otherwise than in the manner provided by this Act.”
24. The two sections cited above demonstrates that the legislative intent is clear that arbitral awards are final, and recourse is only limited to the grounds expressly set out in the Act.
25. The restriction on the jurisdiction of this Court on arbitral matters is founded on the fact that arbitration arises purely as a matter of agreement between parties when parties agree, upfront, that their disputes will be settled by an arbitrator, and not by the national courts. The parties also agree to accept the arbitrator’s view of the facts and the meaning of the contract between them. For this reason, courts will not sit to hear the claims of factual or legal error by an arbitrator as an appellate court does in reviewing decisions of lower courts. This is the party autonomy that is embedded in the Arbitration Act.
26. The above position was aptly captured in Nyutu Agrovet Limited v Airtel Networks Kenya Limited [2015] eKLR, by the Court of Appeal as follows:
“The rationale behind the limited intervention of courts in arbitral proceedings and awards lies in the principle of party autonomy. Once parties have chosen arbitration as their mode of dispute resolution, court intervention must be the exception rather than the rule.”
27. The above position has been reiterated by the courts in several cases. In Synergy Industrial Credit Ltd v Cape Holdings Ltd [2020] eKLR, the Court of Appeal observed that: -
“One of the significant features of the Arbitration Act (the Act) is the principle of party autonomy, which entitles parties to have their disputes resolved by the forum and in the manner of their choice. For that very reason, the instances when the court may intervene in arbitral proceedings or interfere with an arbitral award are not at large; they are few and only those specified by the Act”.
28. In Geo Chem Middle East v Kenya Bureau of Standards [2020] eKLR, the Supreme Court of Kenya quoted, with approval, Ochieng J’s holding in the High Court that:
“It is not the function nor mandate of the High Court to re-evaluate such decisions of an arbitral tribunal, when the court was called upon to determine whether or not to set aside and award … if the court were to delve into the task of ascertaining the correctness of the decision of an arbitrator, the court would be sitting on an appeal over the decision in issue. In light of the public policy of Kenya, which loudly pronounces the intention of giving finality to arbitral awards, it would actually be against the said public policy to have the Court sit on appeal over the decision of the arbitral tribunal”.
29. The limited parameters within which an arbitral award may be set aside are circumscribed under Section 35 of the Arbitration Act as follows:-
“(2) An arbitral award may be set aside by the High Court only if—
(a) the party making the application furnishes proof—
(i) that a party to the arbitration agreement was under some incapacity; or
(ii) the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication of that law, the laws of Kenya; or
(iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or
(iv) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the reference to arbitration or contains decisions on matters beyond the scope of the reference to arbitration, provided that if the decisions on matters referred to arbitration can be separated from those not so referred, only that part of the arbitral award which contains decisions on matters not referred to arbitration may be set aside; or
(v) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless that agreement was in conflict with a provision of this Act from which the parties cannot derogate; or failing such agreement, was not in accordance with this Act; or
(vi) the making of the award was induced or affected by fraud, bribery, undue influence or corruption;
(b) the High Court finds that—
(i) the subject-matter of the dispute is not capable of settlement by arbitration under the law of Kenya; or
(ii) the award is in conflict with the public policy of Kenya.”
30. In Reliable Concrete Works v Ngewanji Company Limited [2022] eKLR, the court held that Section 35(2) strictly circumscribes the jurisdiction of the High Court in setting aside arbitral awards, and an applicant must bring himself squarely within those statutory bounds. The Court stated that: -
“Courts have taken the position that the grounds for setting aside of an arbitral award as set out under the above section of the Act are strict and spell out the jurisdiction of the court in setting aside an Arbitral Award. This is the position that was taken in Midco Holdings Limited v Summit Textiles (EA) Limited [2014] e KLR, where it was held:
“… Section 35 (2) of the Arbitration Act circumscribes the grounds upon which an arbitral award can be set aside, and an applicant seeking to set aside an arbitral award must bring himself strictly within the legal bounds of that Section. See the case of TRANSWORD SAFARIS LTD V EAGLE AVIATION LTD & 3 OTHERS NBI MISC APPLICATION NO. 238 OF 2003, Nyamu J. (as he then was).”
31. From the provisions of the statute and the existing jurisprudence it is clear that Section 35 of the Act sets out the exclusive grounds upon which a party may apply to set aside an arbitral award. These include incapacity, invalidity of the arbitration agreement, lack of proper notice, excess of jurisdiction, improper composition of the tribunal, or conflict with public policy. Review is not among the grounds provided.
32. It is trite law that the Arbitration Act is a complete code, and that it prescribes the circumstances in which the Court may intervene in arbitral matters. Resort to other statutes or procedures outside the Act is impermissible. To permit review would be to expand the Court’s jurisdiction beyond the limits set by the Arbitration Act, contrary to Sections 10 and 32A.
33. The Court associates itself with the holding of in Mahican Investments Limited & 3 others v Giovanni Gaida & 80 others [2005] KEHC 1267 (KLR), where Ransely J (as he then was) stated as follows:
“A court will not interfere with the decision of an Arbitration even if it is apparently a misinterpretation of a contract, as this is the role of the Arbitrator. To interfere would place the court in the position of a Court of Appeal, which the whole intent of the Act is to avoid. The purpose of the Act is to bring finality to the disputes between the parties.”
34. The Court of Appeal in Anne Mumbi Hinga v Victoria Njoki Gathara [2009] eKLR held that Section 10 of the Arbitration Act ousts the jurisdiction of the Court to intervene in arbitral matters except as provided in the Act. The Supreme Court in Nyutu Agrovet Ltd v Airtel Networks Kenya Ltd [2019] eKLR underscored the finality of arbitral awards, save for narrow exceptions under Section 35.
35. The Court of Appeal in Anne Mumbi Hinga v Victoria Njoki Gathara [2009] eKLR, while holding that the Civil Procedure Act and the Rules made thereunder, do not apply in arbitration matters, stated as stated as follows: -
“A careful look at all the provisions cited in the heading in the application and invoked by the appellant in the superior court clearly shows that, all the provisions including the Civil Procedure Act and rules do not apply to arbitral proceedings because Section 10 of the Arbitration Act makes the Arbitration Act a complete code and rule 11 of the Arbitration Rules cannot override Section 10 of the Arbitration Act which states: “Except as provided in this Act no court shall intervene in matters governed by this Act.” In the light of the above, the superior court did not have jurisdiction to intervene in any manner not specifically provided for in the Arbitration Act. This includes entertaining the application the subject matter of this appeal and all the other applications purporting to stay the award or the judgment/decree arising from the award…The provisions of the Arbitration Act make it clear that it is a complete code except as regards the enforcement of the award/decree where Arbitration Rules 1997 apply the Civil Procedure Rules where appropriate. In our view, Rule 11 of the Arbitration Rules 1997 has not imported the Civil Procedure Rules line, hook and sinker to regulate arbitrations under the Act. It is clear to us that no application of the Civil Procedure Rules would be regarded as appropriate if its effect would be to deny an award finality and speedy enforcement both of which are major objectives of arbitration. It follows therefore all the provisions invoked except Section 35 and 37 do not apply or give jurisdiction to the superior court to intervene and all the applications filed against the award in the superior court should have been struck out by the court suo motu because jurisdiction is everything as so eloquently put in the case of Owners of the Motor Vessel “Lillian S” vs Caltex Oil (Kenya) Ltd 1989 KLR 1.”
36. Similarly, the Court of Appeal (Karanja JA) in Nyutu Agrovet Limited v Airtel Networks Kenya Limited (supra), stated as follows on the issue: -
“40. Flowing from this is the question whether these proceedings can be subjected to our Civil Procedure Act. I hold the view that they are not. The clear provisions in the Arbitration Act cannot be displaced by the provisions of the Civil Procedure Act and Rules except as provided for in the Act itself as succinctly provided in Section10 thereof. Moreover, Rule 11 of the Arbitration Rules states that The Civil Procedure Rules shall apply to arbitral proceedings under the Act “so far as is appropriate”.
41. This would apply where there is a lacuna particularly in the rules of procedure but cannot in my view override clear statutory provisions such as Sections 10 and 35 of the Act.”
37. In the present case, the Applicant’s grievance that the Arbitrator and the Court erred in reckoning limitation is, at best, a matter of appeal. The Arbitration Act expressly excludes appeals from arbitral awards, save for the limited recourse under Section 35. The present application is therefore an impermissible collateral attack on the award.
38. In light of Sections 10, 32A, and 35 of the Arbitration Act, and in line with the existing jurisprudence, this Court has no jurisdiction to entertain the present application for review.
39. As pointed out in the preceding paragraphs, the Arbitration Act is a complete code, and arbitral awards are final and binding save for the narrow grounds of setting aside under Section 35. Review is not available in arbitral matters.
40. Accordingly, the application dated 16th April 2024 is hereby dismissed, with costs, which is hereby assessed at Kshs.100,000/-.
41. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
11TH DECEMBER 2025
ADO MOSES
JUDGE
In the presence of: -
C/A – Moses
N/A.…………..for the Claimant /Applicant
Kairu for Waithaka….………. for the Respondent
1. The Applicant, NAR Enterprises Limited, has by an application dated 16th April 2024 moved this Court under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules seeking review of the ruling delivered on 12th May 2023, which dismissed its challenge to an arbitral award.
2. The application is premised on the grounds on its face, and is also supported by the affidavit dated 16th April, 2024, sworn by Malkit Singh, a director of the Applicant
3. The Respondent, Africa Reit Limited, opposes the application vide a replying affidavit dated 10th June 2025 by Ms. Joyce Wanjiru Ndungu, the Respondent’s Finance Operations Director.
4. The central question is whether this Court has jurisdiction to entertain a review application in respect of an arbitral award, given the provisions of the Arbitration Act, 1995.
Background
5. The facts leading to the instant application are that the parties entered into a construction contract under which the Applicant undertook specified works for the Respondent. A salient term (Clause 25(3)(c)) provided that payment for the works was conditional upon issuance of a notice or certificate of completion by the project architect.
6. The contract was subsequently terminated. At termination, the parties undertook a mutual valuation of the works performed by the Applicant, and, per the Applicant’s case, the amounts were not in dispute. The architect did not issue a completion certificate, and the Respondent did not remit payment.
7. The Applicant commenced arbitration seeking payment of the valued sums. The Respondent raised a preliminary objection that the claim was time-barred. The Arbitrator upheld the objection and struck out the claim. In doing so, the Arbitrator observed that he was unable to determine when the cause of action arose but nonetheless concluded that the claim was out of time.
8. The Applicant moved the High Court to set aside the award. By ruling dated 12th May 2023, the Court dismissed the application and sustained the award, agreeing that the claim was statute-barred.
9. The present application seeks review of that ruling on grounds of error apparent on the face of the record and sufficient reason in the interests of justice. The Applicant prays that the ruling and the arbitral award be set aside and that a new arbitrator be appointed to determine the dispute on the merits.
10. The Application was canvassed by way of written submissions. The Applicant through the law firm of Wanza Kivindu & Co. Advocates filed submissions dated 30th July 2025, whilst the Respondent filed theirs dated 10th September 2025 through the law firm of Waithaka & Associates Advocates.
Applicant’s Submissions
11. The Applicant contended that the arbitral award striking out its claim as time-barred was erroneous. It submitted that Clause 25(3)(c) of the construction contract expressly made payment conditional upon issuance of a certificate of completion by the project architect. Since no such certificate has ever been issued, the Applicant argues that no cause of action for payment had crystallized, and limitation under Section 4(1) of the Limitation of Actions Act could not begin to run.
12. The Applicant emphasized that the Arbitrator himself acknowledged that he was unable to determine when the cause of action arose, yet paradoxically proceeded to dismiss the claim as statute-barred. The Court, in upholding that decision, repeated the same error. The Applicant submits that this constitutes an error apparent on the face of the record.
13. Further, the Applicant urged that sufficient reason exists to warrant review in the interests of justice. It maintained that by disregarding the contractual condition precedent, both the Arbitrator and the Court effectively rewrote the parties’ bargain, depriving the Applicant of payment for works duly performed and valued, while the Respondent continues to enjoy the benefit of the Applicant’s performance without compensation, which, in the Applicant’s view, amounts to unjust enrichment.
14. The Applicant relied on authorities including National Bank of Kenya Ltd v Ndungu Njau [1997] eKLR and Muyodi v ICDCI [2006] 1 EA 243, to underscore that review lies where there is a glaring error or omission leading to miscarriage of justice.
15. Consequently, the Applicant prays that the ruling of 12th May 2023 be reviewed, the arbitral award set aside, and a new arbitrator appointed to determine the dispute on its merits.
Respondent’s Submissions
16. The Respondent oppose the application, contending that it is misconceived and amounts to an appeal disguised as a review. It submits that the Arbitration Act, 1995 is a complete code governing arbitral matters, and that review is not one of the instances in which the Court may intervene. Sections 10 and 32A of the Act limit court intervention and declare arbitral awards final and binding, save for the narrow grounds of setting aside under Section 35.
17. The Respondent argues that the issue of limitation was squarely before the Arbitrator, who found the claim time-barred, and this Court in its ruling of 12th May 2023 upheld that finding. The Applicant’s contention that the cause of action had not accrued until issuance of the architect’s certificate is, in the Respondent’s view, an attempt to circumvent statutory limitation. It submits that limitation runs from breach or termination of the contract, not from issuance of a certificate which the Applicant itself failed to procure.
18. The Respondent maintains that the Applicant has not demonstrated discovery of new evidence, error apparent on the face of the record, or sufficient reason to warrant review. It relies on authorities such as Anne Mumbi Hinga v Victoria Njoki Gathara [2009] eKLR and Nyutu Agrovet Ltd v Airtel Networks Kenya Ltd [2019] eKLR, to emphasize that arbitral awards are final and binding, and that courts must respect the principle of non-intervention except as provided by the Act.
19. The Respondent therefore urged the Court to dismiss the application with costs, reiterating that review is not available in arbitral matters and that the Applicant’s grievance, if any, lies outside the statutory framework.
Analysis and Determination
20. I have considered the Application, the response thereto, the applicable law, and the written submissions filed by both parties. I find that the only issue for determination in the present application is; whether this Court has jurisdiction to entertain the application in light of Sections 10, 32A, and 35 of the Arbitration Act.
21. Section 10 of the Arbitration Act provides that: “Except as provided in this Act, no court shall intervene in matters governed by this Act.”
22. The above provision is categorical. It ousts the jurisdiction of the Court to intervene in arbitral proceedings except in the specific instances expressly provided for in the Act.
23. Further, Section 32A of the Act reinforces the above principle by declaring that:
“Except as provided in this Act, an arbitral award shall be final and binding upon the parties, and no recourse is available against the award otherwise than in the manner provided by this Act.”
24. The two sections cited above demonstrates that the legislative intent is clear that arbitral awards are final, and recourse is only limited to the grounds expressly set out in the Act.
25. The restriction on the jurisdiction of this Court on arbitral matters is founded on the fact that arbitration arises purely as a matter of agreement between parties when parties agree, upfront, that their disputes will be settled by an arbitrator, and not by the national courts. The parties also agree to accept the arbitrator’s view of the facts and the meaning of the contract between them. For this reason, courts will not sit to hear the claims of factual or legal error by an arbitrator as an appellate court does in reviewing decisions of lower courts. This is the party autonomy that is embedded in the Arbitration Act.
26. The above position was aptly captured in Nyutu Agrovet Limited v Airtel Networks Kenya Limited [2015] eKLR, by the Court of Appeal as follows:
“The rationale behind the limited intervention of courts in arbitral proceedings and awards lies in the principle of party autonomy. Once parties have chosen arbitration as their mode of dispute resolution, court intervention must be the exception rather than the rule.”
27. The above position has been reiterated by the courts in several cases. In Synergy Industrial Credit Ltd v Cape Holdings Ltd [2020] eKLR, the Court of Appeal observed that: -
“One of the significant features of the Arbitration Act (the Act) is the principle of party autonomy, which entitles parties to have their disputes resolved by the forum and in the manner of their choice. For that very reason, the instances when the court may intervene in arbitral proceedings or interfere with an arbitral award are not at large; they are few and only those specified by the Act”.
28. In Geo Chem Middle East v Kenya Bureau of Standards [2020] eKLR, the Supreme Court of Kenya quoted, with approval, Ochieng J’s holding in the High Court that:
“It is not the function nor mandate of the High Court to re-evaluate such decisions of an arbitral tribunal, when the court was called upon to determine whether or not to set aside and award … if the court were to delve into the task of ascertaining the correctness of the decision of an arbitrator, the court would be sitting on an appeal over the decision in issue. In light of the public policy of Kenya, which loudly pronounces the intention of giving finality to arbitral awards, it would actually be against the said public policy to have the Court sit on appeal over the decision of the arbitral tribunal”.
29. The limited parameters within which an arbitral award may be set aside are circumscribed under Section 35 of the Arbitration Act as follows:-
“(2) An arbitral award may be set aside by the High Court only if—
(a) the party making the application furnishes proof—
(i) that a party to the arbitration agreement was under some incapacity; or
(ii) the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication of that law, the laws of Kenya; or
(iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or
(iv) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the reference to arbitration or contains decisions on matters beyond the scope of the reference to arbitration, provided that if the decisions on matters referred to arbitration can be separated from those not so referred, only that part of the arbitral award which contains decisions on matters not referred to arbitration may be set aside; or
(v) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless that agreement was in conflict with a provision of this Act from which the parties cannot derogate; or failing such agreement, was not in accordance with this Act; or
(vi) the making of the award was induced or affected by fraud, bribery, undue influence or corruption;
(b) the High Court finds that—
(i) the subject-matter of the dispute is not capable of settlement by arbitration under the law of Kenya; or
(ii) the award is in conflict with the public policy of Kenya.”
30. In Reliable Concrete Works v Ngewanji Company Limited [2022] eKLR, the court held that Section 35(2) strictly circumscribes the jurisdiction of the High Court in setting aside arbitral awards, and an applicant must bring himself squarely within those statutory bounds. The Court stated that: -
“Courts have taken the position that the grounds for setting aside of an arbitral award as set out under the above section of the Act are strict and spell out the jurisdiction of the court in setting aside an Arbitral Award. This is the position that was taken in Midco Holdings Limited v Summit Textiles (EA) Limited [2014] e KLR, where it was held:
“… Section 35 (2) of the Arbitration Act circumscribes the grounds upon which an arbitral award can be set aside, and an applicant seeking to set aside an arbitral award must bring himself strictly within the legal bounds of that Section. See the case of TRANSWORD SAFARIS LTD V EAGLE AVIATION LTD & 3 OTHERS NBI MISC APPLICATION NO. 238 OF 2003, Nyamu J. (as he then was).”
31. From the provisions of the statute and the existing jurisprudence it is clear that Section 35 of the Act sets out the exclusive grounds upon which a party may apply to set aside an arbitral award. These include incapacity, invalidity of the arbitration agreement, lack of proper notice, excess of jurisdiction, improper composition of the tribunal, or conflict with public policy. Review is not among the grounds provided.
32. It is trite law that the Arbitration Act is a complete code, and that it prescribes the circumstances in which the Court may intervene in arbitral matters. Resort to other statutes or procedures outside the Act is impermissible. To permit review would be to expand the Court’s jurisdiction beyond the limits set by the Arbitration Act, contrary to Sections 10 and 32A.
33. The Court associates itself with the holding of in Mahican Investments Limited & 3 others v Giovanni Gaida & 80 others [2005] KEHC 1267 (KLR), where Ransely J (as he then was) stated as follows:
“A court will not interfere with the decision of an Arbitration even if it is apparently a misinterpretation of a contract, as this is the role of the Arbitrator. To interfere would place the court in the position of a Court of Appeal, which the whole intent of the Act is to avoid. The purpose of the Act is to bring finality to the disputes between the parties.”
34. The Court of Appeal in Anne Mumbi Hinga v Victoria Njoki Gathara [2009] eKLR held that Section 10 of the Arbitration Act ousts the jurisdiction of the Court to intervene in arbitral matters except as provided in the Act. The Supreme Court in Nyutu Agrovet Ltd v Airtel Networks Kenya Ltd [2019] eKLR underscored the finality of arbitral awards, save for narrow exceptions under Section 35.
35. The Court of Appeal in Anne Mumbi Hinga v Victoria Njoki Gathara [2009] eKLR, while holding that the Civil Procedure Act and the Rules made thereunder, do not apply in arbitration matters, stated as stated as follows: -
“A careful look at all the provisions cited in the heading in the application and invoked by the appellant in the superior court clearly shows that, all the provisions including the Civil Procedure Act and rules do not apply to arbitral proceedings because Section 10 of the Arbitration Act makes the Arbitration Act a complete code and rule 11 of the Arbitration Rules cannot override Section 10 of the Arbitration Act which states: “Except as provided in this Act no court shall intervene in matters governed by this Act.” In the light of the above, the superior court did not have jurisdiction to intervene in any manner not specifically provided for in the Arbitration Act. This includes entertaining the application the subject matter of this appeal and all the other applications purporting to stay the award or the judgment/decree arising from the award…The provisions of the Arbitration Act make it clear that it is a complete code except as regards the enforcement of the award/decree where Arbitration Rules 1997 apply the Civil Procedure Rules where appropriate. In our view, Rule 11 of the Arbitration Rules 1997 has not imported the Civil Procedure Rules line, hook and sinker to regulate arbitrations under the Act. It is clear to us that no application of the Civil Procedure Rules would be regarded as appropriate if its effect would be to deny an award finality and speedy enforcement both of which are major objectives of arbitration. It follows therefore all the provisions invoked except Section 35 and 37 do not apply or give jurisdiction to the superior court to intervene and all the applications filed against the award in the superior court should have been struck out by the court suo motu because jurisdiction is everything as so eloquently put in the case of Owners of the Motor Vessel “Lillian S” vs Caltex Oil (Kenya) Ltd 1989 KLR 1.”
36. Similarly, the Court of Appeal (Karanja JA) in Nyutu Agrovet Limited v Airtel Networks Kenya Limited (supra), stated as follows on the issue: -
“40. Flowing from this is the question whether these proceedings can be subjected to our Civil Procedure Act. I hold the view that they are not. The clear provisions in the Arbitration Act cannot be displaced by the provisions of the Civil Procedure Act and Rules except as provided for in the Act itself as succinctly provided in Section10 thereof. Moreover, Rule 11 of the Arbitration Rules states that The Civil Procedure Rules shall apply to arbitral proceedings under the Act “so far as is appropriate”.
41. This would apply where there is a lacuna particularly in the rules of procedure but cannot in my view override clear statutory provisions such as Sections 10 and 35 of the Act.”
37. In the present case, the Applicant’s grievance that the Arbitrator and the Court erred in reckoning limitation is, at best, a matter of appeal. The Arbitration Act expressly excludes appeals from arbitral awards, save for the limited recourse under Section 35. The present application is therefore an impermissible collateral attack on the award.
38. In light of Sections 10, 32A, and 35 of the Arbitration Act, and in line with the existing jurisprudence, this Court has no jurisdiction to entertain the present application for review.
39. As pointed out in the preceding paragraphs, the Arbitration Act is a complete code, and arbitral awards are final and binding save for the narrow grounds of setting aside under Section 35. Review is not available in arbitral matters.
40. Accordingly, the application dated 16th April 2024 is hereby dismissed, with costs, which is hereby assessed at Kshs.100,000/-.
41. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
11TH DECEMBER 2025
ADO MOSES
JUDGE
In the presence of: -
C/A – Moses
N/A.…………..for the Claimant /Applicant
Kairu for Waithaka….………. for the Respondent