Introduction
1. Before this court for determination are two applications. The first to be filed is the Chamber Summons application dated 15th March 2024 by the Applicant (Pemwe Services Limited) seeking, in the main, an order for the recognition and enforcement of the Arbitral Award dated 15th January 2024 issued by Frank Muchiri, Chartered Arbitrator. The second application is the one dated 7th May 2024 by the Respondent (Primarosa Flowers Limited) seeking to have the said Arbitral Award set aside.
2. In this Ruling, I will refer to the Claimant in the arbitration proceedings as “the Applicant” and the Respondent as “the Respondent.”
Application dated 15th March 2024.
3. The Applicant’s Chamber Summons application dated 15th March 2024 is filed under, among others, Section 36 (1) of the Arbitration Act 1995 and Articles 159(2) and 165 (6) of the Constitution of Kenya. The application is premised on the grounds set out on the face of the application and the supporting affidavit and further supporting affidavit of Dennis Mbuvi, the Applicant’s Chief Operating Officer, sworn on 15th March 2024 and 19th December 2024, respectively.
4. The grounds upon which the application is based are that pursuant to a Security Services Agreements dated 26th July 2018, the Applicant agreed to provide security services to the Respondent at its various offices for a consideration. The Applicant, however, alleged before the arbitral tribunal that vide a notice of termination dated 26th January 2021, the Respondent, without giving the requisite notice under the agreement, illegally and irregularly terminated the contract.
5. The Applicant further alleged that at the time when the Respondent terminated the contract, the Respondent was indebted to the Applicant in the sum of Kshs. 29,713,280.
6. In line with Clause 11 of the contract, a disagreement emanating from the agreement was referred to arbitration.
7. Upon considering the dispute before it, the Arbitrator (Frank Muchiri, M. CIArb) published an Award dated 15th January 2024 in favour of the Applicant and issued the following orders:
“The Respondent shall within fourteen (14) days of the publication of this Award, pay to the Claimant –
a) The sum of Kenya Shillings Twenty-Four Million Two Hundred and Thirteen Thousand, Two Hundred and Eighty (Kshs. 24,213,280/=) being the payment due to the Claimant for services rendered to the Respondent under the contract inclusive of the sum of Kshs. 1,412,521 being withholding tax due and owing to the Tax and Revenue Authority (KRA).
b) The amount stated in (a) above shall attract simple interest at the rate of 12% from the date of this Final Award until payment in full.
c) Each party shall bear its own costs incurred in this arbitration….”
8. The Applicant contends that the Respondent failed to pay the amount awarded, and therefore, it now seeks to have the arbitral award recognized, in order to have the Award enforced as a decree of this court as against the Respondent.
9. The Application is opposed by the Respondent vide its Replying Affidavit sworn on 11th November 2024 by Mati Munuve, a director of the Respondent.
Application dated 7th May 2024
10. The Respondent on its part filed a Notice of Motion Application dated 7th May 2024 seeking for the setting aside of the Final arbitral Award of Frank Muchiri, MCIArb, dated 15th January 2024 and received on 7th February 2024 in its entirety.
11. The application is supported by the affidavit of Sadia Carren, the Respondent’s Legal Manager. The basis of the Respondent’s application is that said Award is in conflict with the public policy of Kenya, contains decisions on matters beyond the scope of the reference to arbitration, and that the making of the Award was induced or affected by undue influence.
12. It is further the Respondent’s argument that the Award is illegal since it violates numerous legal principles, including the right to be heard and the application of evidential/legal burden and standard of proof. The Respondent further contends that:
i. The Award offends the tenets of a fair trial and the right to be heard before an impartial body, as guaranteed by Articles 25(c) and 50 of the Constitution of Kenya, 2010.
ii. The Award was made in contravention of statute laws and set legal principles regarding the burden of proof, the law of contracts, the award of specific and special damages, and the treatment of evidence.
iii. The Award is void to the extent that it violates well-established principles of breach of contract, the treatment of evidence, and the burden of proof by finding that the Applicant herein did not tender credible evidence of its allegations of breach of contract by the Claimant.
iv. The Award is illegal as it arises from the selective treatment of evidence in favour of the Claimant in a manner repugnant to the right to a fair trial. The Award ignores the Applicant’s documentary evidence and the oral evidence of the Applicant’s witnesses who testified as to the Claimant’s failure to perform its obligations as per the Agreement between the Parties, which testimony was not refuted nor controverted.
13. The application by the Respondent is opposed by the affidavit of Dennis Mbuvi, sworn on 4th July 2024. According to Mr. Mbuvi, the Application for setting aside if the Arbitral Award is time-barred and therefore should be dismissed the same having been filed outside the permitted 3 months after the date of the publication of the award.
14. It is further deponed by Mr. Mbuvi that the application by the Respondent is essentially an appeal disguised as an application for setting aside; that no specific public policy has been shown to have been breached by the Award; no evidence has been availed by the Respondent of an illegality of the Award; that no evidence that the arbitral tribunal exceeded the scope of reference, or that the Final Award was induced and/or affected by undue influence or bias.
Submissions.
15. On 2nd October 2024, directions were given by this Court that both applications be heard together. The applications proceeded by way of written submissions. The Applicant’s (Pemwe Services Limited) submissions are dated 11th November 2024, whilst that of the Respondent (Primarosa Flowers Limited) is dated 19th November 2024.
Analysis and determination:
16. It is trite law that the Court’s intervention in an arbitral process is limited. Section 10 of the Arbitration Act provides that:
“Except as provided in this Act, no court shall intervene in matters governed by this Act.”
17. It therefore follows that once an award is issued, as is the case herein, the Court’s role is limited only to the extent that is provided under Sections 35 and 37 of the Act. However, even under these sections of the law, the guiding principle should always be that of parties’ autonomy and the concept of finality of the arbitral process. The Court of Appeal in Nyutu Agrovet Limited v Airtel Networks Kenya Ltd [2024] KECA 523 (KLR) stated that:
“…In resolving the issue at hand, we are alive to the fact that the Supreme Court underscored the general approach on the role and extent of court intervention in arbitration matters in Kenya as provided in Section 10 of the Act. In peremptory terms, Section 10 restricts the jurisdiction of the court to only those matters provided for by the Act. The section epitomizes the recognition of the policy of party autonomy, which underlies arbitral process. The section articulates the need to restrict the court’s intervention in arbitration so as to give effect to that policy. The principle of party autonomy is recognized as a critical tenet for guaranteeing that parties are satisfied with results of arbitration. It also helps to achieve the key object of arbitration, that is, to deliver fair resolution of disputes between parties without unnecessary delay and expense.”
18. While the Court is required not to delve into the task of ascertaining the correctness of the decision of an arbitrator (since doing so would amount to sitting on an appeal over the decision), it is equally trite that the Court should not close its eyes on a decision that is an outright affront to justice and one that disregards the intention of the parties as set out in their contractual documents. See the case of Nanyuki Ranching Limited v Rockstocks Holding Limited (Miscellaneous Application E197 of 2024) [2024] KEHC 9220 (KLR) (Commercial and Tax) (31 July 2024) (Ruling) where Mabeya J stated that:
“While the two principles set out above require that the High Court should not delve into the task of ascertaining the correctness of the decision of an arbitrator, since in doing so the court would be sitting an appeal over the decision, the court would however not close its eyes on a decision that is an outright affront to justice. A decision that disregards the intention of the parties as set out in their contractual documents would amount to being contrary to public policy.
19. With the above principles in mind, I shall now proceed and consider the two applications filed by the parties herein. From the parties’ submissions, the following three issues fall for determination:
i. Whether the application to set aside the Award meets the legal requirements set under Section 35 (2) and (3) of the Arbitration Act.
ii. Whether the Award should be recognised and leave granted for its enforcement.
Whether the application to set aside the Award meets the legal requirements.
20. The Applicant submitted that the application dated 7th May 2024 by the Respondent to set aside the Award is time-barred and does not meet the statutory threshold. According to the Applicant, the Respondent’s application was submitted outside the 3-month statutory timeline permitted under Section 35(3) of the Arbitration Act.
21. The Respondent did not in its submissions dispute that the application for setting aside was filed outside the statutory timelines. It was, however, its submissions that under Section 35(4) of the Arbitration Act, the Court has the discretion to enlarge the time within which to file the application to set aside the Award. Citing the case of Nairobi City County v Kenya Commercial Bank Limited (Miscellaneous Application E174 of 2021) [2022] KEHC 73 (KLR) (Commercial and Tax) (4 February 2022) (Ruling), the Respondent urged this court to exercise discretion in its favour and allow the application, despite having been filed outside the statutory timelines.
22. Section 35(3) of the Arbitration Act provides as follows:
“(3) An application for setting aside the arbitral award may not be made after 3 months have elapsed from the date on which the party making that application had received the arbitral award, or if a request had been made under section 34 from the date on which that request had been disposed of by the arbitral award.”
23. The Court of Appeal in Ezra Odondi Opar v Insurance Company of East Africa Ltd [2020] eKLR stated as follows regarding the provisions of Section 35(3) as to the timelines within which to file an application for setting aside.
“The requirement that an application for setting aside an arbitral award may not be made after 3 months from the date on which the award is received is consistent with the general principle of expedition and finality in arbitration. As the Supreme Court of Kenya recently noted in Nyutu Agrovet Limited vs. Airtel Networks Kenya Limited and another, SC Petition No. 12 of 2015 “the Arbitration Act, was introduced into our legal system to provide a quicker way of settling disputes” “in a manner that is expeditious, efficient…” while also observing that Section 35 of the Act, “also provides the time limit within which the application for setting aside should be made.”
24. Further, it is settled by judicial authority that the three-month period provided under the Act is to be computed, not from the date that a party receives a copy of the Award, but should be reckoned from the date when the Award is ready for collection. In Mahican Investments Limited & 3 others v Giovanni Gaida & 80 others [2005] KEHC 1267 (KLR), Ransely J (as he then was) cited with approval the decision of Nyamu J (as he then was) in Transwood Safaris Ltd v Eagle Aviation Ltd & 3 others. H.C Misc. Application No. 238 of 2003 and stated as follows:
“Mr. Justice Nyamu also cited with approval the first holding in the Bulk Transport case (supra), which states: -
“The submission that item should be calculated from the date of receipt of the copies of the award would be rejected in that it had been accepted as good law for 140 years that time ran from the date upon which the award was made and published to the parties and publications to the parties was completed by notice’.
I would with respect, adopt the reasoning in the Bulk Transport case (Supra) and also the reasoning of Mr. Justice Nyamu that “receipt” means when notice is given that the arbitral award is ready for collection.
As was pointed out in the Bulk Transport case (Supra) that a person wishing to set aside an arbitral award could wait indefinitely before collecting the award and therefore seek to set it aside.
For this reason, I would dismiss the application to set aside the arbitral award.”
25. Additionally, in the case of University of Nairobi v Multiscope Consultancy Engineers Limited [2020] KEHC 9696 (KLR), Tuiyott J (as he then was), was categorical that in Kenya, delivery happens when the arbitral tribunal either gives, yields possession, releases or makes available for collection a signed copy of the award to the parties since the law does not require the arbitral tribunal to dispatch or send a signed copy to each party. The Judge remarked that:
“……statute does not require the arbitral tribunal to dispatch or send a signed copy to each party. For that reason delivery happens when the arbitral tribunal either gives, yields possession, releases or makes available for collection a signed copy of the award to the parties. Actual receipt of the signed copy of the award by the party is not necessary. So that when the arbitral tribunal notifies parties that a signed copy of the award is ready for collection then, the date of notification is deemed to be the date of delivery and receipt of the award because it is on that date that the tribunal makes the signed copy available for collection by the parties.”
26. In the present case, it is not in dispute that the Award was delivered on 15th January 2024. The three months period prescribed under the Arbitration Act, therefore, expired on 15th April 2024. However, evidence on record indicates that the Respondent’s application to set aside was filed on 7th May 2024. This is obviously beyond the three (3) months prescribed under Section 35 (3) of the Act.
27. In the premises, this Court finds and holds that the Respondent’s application dated 7th May 2024 seeking to set aside the Arbitral Award was filed outside the timelines authorized in law and is therefore incompetent in that regard. Accordingly, the same is hereby dismissed.
28. The above finding notwithstanding, I will still proceed and examine the grounds advanced by the Respondent as the basis of the application for setting aside the arbitral award.
29. Section 35(2) of the Arbitration Act sets out the reasons for setting aside an arbitral award in the following terms:
“35. Application for setting aside arbitral award
(1) ……….
(2) An arbitral award may be set aside by the High Court only if—
(a) The party making the application furnishes proof—
(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 making of the award was induced or affected by fraud, bribery, undue influence or corruption;
(b) The High Court finds that—
(i) ………..
(ii) the award is in conflict with the public policy of Kenya.
30. According to the Respondent, the Arbitral Award ought to be set aside due to the following reasons: -
a) That the Claimant’s application for recognition of the award is incompetent and ripe for striking out.
b) The Award ought not to be enforced by the Court under S. 37 of the Act on the basis that:
a) The arbitral award deals with a dispute not contemplated by or not falling within the terms of the reference to arbitration, or it contains decisions on matters beyond the scope of the reference to arbitration
b) The recognition or enforcement of the arbitral award would be contrary to the public policy of Kenya
c) The making of the arbitral award was induced or affected by fraud, bribery, corruption, or undue influence
c) This Honourable Court ought to set aside the Award
31. Regarding the competence of the application for recognition and enforcement of the Award, the Respondent submitted that the application is incompetent and ought to be struck out since the Applicant failed to furnish the Court with either the original Award or a certified copy of the same as required under 36(3) of the Arbitration Act. The Respondent cited, among others, the case of Safaricom Limited v Ocean View Beach Hotel Limited, Salim Sultan Moloo & Alsai (K) Limited [2015] KEHC 6370 (KLR) in support of this argument.
32. On its part, the Applicant maintained that the application is competent and the provisions of section 36(3) of the Act were duly complied with. Referring to pages 1-32 of the annexture to the affidavit of Dennis Mbuvi sworn on 15th March 2024, the Applicant asserted that it had annexed the contracts in question. It was further the Applicant’s assertion that they furnished to this Court, in their application, a copy of the Award dated 5th March 2024, as required under section 36(3)(b) of the Arbitration Act.
33. I have carefully perused the Applicant’s application dated 15th March 2024 seeking this court’s recognition of the arbitral award. From the further affidavit of Dennis Mbuvi sworn on 19th December 2024 in support of the application, it is evident that the Applicant attached a certified copy of the agreements dated 26th July 2018 for the provision of security services to the Respondent. The agreements provided at Clause 11 thereof that any dispute between the parties, not amicably settled within 14 days or such longer period as may be agreed, was to be referred for arbitration. Clause 11 of the agreements provided that:
“If the dispute has not been settled pursuant to amicable settlement process within 14 fourteen (14) days or such longer period as may be agreed between the parties from when the amicable settlement process was instituted, any party may elect to commence arbitration. Such arbitration shall be referred to arbitration by a single arbitrator to be appointed by agreement between the parties or in default of such agreement within fourteen (14) days of the notification of a dispute, upon application of either party, by the Chairman for the time being of the Kenya Branch of the Chartered Institute of Arbitrators of the Republic of Kenya”
34. It is further evident from paragraph 6 of the affidavit of Dennis Mbuvi sworn on 15th March 2024 that the Applicant annexed to the application, a certified copy of the Arbitral Award dated 15th January 2024. As rightly submitted by the Applicant, the arbitral Award (at Pages 33-79 of the application) is duly signed and stamped by Mr. Frank Muchiri, the Arbitrator.
35. In view of the above, the argument by the Respondent that the application for recognition and enforcement of the arbitral award is incompetent for failure to comply with the provisions of section 36(3) of the Arbitration Act is hereby found to be without merit, and is accordingly dismissed.
36. Related to the above is the Respondent’s argument that the Award ought not to be enforced by the Court since the arbitral award deals with a dispute not contemplated by or not falling within the terms of the reference to arbitration, or it contains decisions on matters beyond the scope of the reference to arbitration. According to the Respondent, the dispute between the parties and the Claim by the Applicant before the Arbitral tribunal related only to one contract/agreement, that is, the contract dated 26th July 2018 for the provision of professional security services at the Respondent’s Nyahururu farm at Ol-Joro-Orok. It was therefore the Respondent’s position that the Award, to the extent that it purports to make a determination on three (3) separate contracts, dealt with matters beyond its scope since the other two agreements had not been referred to arbitration.
37. That Rule 29 CIArb Arbitration Rules 2020 allow for consolidation of arbitrations involving the same parties where the arbitrations may be consolidated in the interest of efficiency and that the arbitration clause in the Contract and the Sub-Contracts are similar in all material aspects.
38. Section 17 (3) of the Arbitration Act provides that;
“A plea that the arbitral tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings.”
39. In Joma Investments Limited v N K Brothers Limited [2018] KEHC 995 (KLR), the court dealt with the provisions of section 17 (3) of the Act and what happens when a party fails to raise an objection at the first instance. The Court stated that: -
“31. Given the foregoing, my take is that since the arbitrator did not deal with any substantive aspect of whatever dispute that was before him, instead of filing the instant summons, the applicant ought to have followed the procedure stipulated under section 17 of the Arbitration Act and challenged the arbitrator’s jurisdiction to determine those claims it felt went beyond the scope of his authority once the arbitral proceedings began as had been directed by the arbitrator in his ruling.
32. The arbitral tribunal should have been given an opportunity to rule on its own jurisdiction as provided for in section 17 (1) of the Arbitration Act. Had this been done, the parties would have been heard on the allegation that some of the claims made by the respondent exceeded the arbitrator’s jurisdiction and a decision would have been made on the merits. The applicant would then have been at liberty to apply to this court if it was aggrieved by the arbitrator’s decision.”
40. In the instant case, it is clear that the Applicant did not raise the issue of the arbitrator’s jurisdiction before the tribunal, but has instead raised the same as one of the grounds for the application to set aside the award. This, in my view, amounts to a challenge on the tribunal’s factual findings contrary to the established principle of law that the Court cannot interfere with the factual findings of the Arbitrator. See the case of Tcat Limited vs Joseph Arthur Kibutu [2015] eKLR, where the Court stated that:
“If the court would look into the issue of whether there was enrichment as invited to do, it is my finding that the same would be tantamount to the court trying to render itself on a question of fact. The Arbitrator used the facts before him in determining whether or not there was breach of any of the terms of the subject Agreement. And as the Arbitrator remains the master of the facts, the Court can only make a finding as to an error in law and not of fact. See the case Kenya Oil Company Limited & Another vs Kenya Pipeline Company [2014] eKLR, Moran vs Lloyds (1983) 2 ALL ER 200 and DB Shapriya & Co. vs Bishint (2003) 3 EA 404, where there is judicial consensus that;
“all questions of fact are and always have been within the sole domain of the Arbitrator…. The general rule deductible from these decisions is that the court cannot interfere with the findings of facts by the Arbitrator.
The arbitral tribunal was therefore seized of relevant material and facts which were placed before it by the Applicant. It considered all relevant material. It inquired into the existence of the facts in the case and decided on the extent of the Respondent indebtedness. The court cannot thus be called to disturb the award on that front.”
41. In the circumstances, to the extent that the Respondent in this case did not follow the procedure stipulated under section 17 of the Arbitration Act and challenged the arbitrator’s jurisdiction to determine the claims in respect of the other two (2) contracts it felt that the same was beyond the scope of the tribunal, this Court is unable to uphold that objection by the Respondent.
42. The Respondent further argued that the Award ought not to be recognised by this Court since its recognition or enforcement would be contrary to the public policy of Kenya, on account that the same is illegal and inconsistent with the Constitution and other laws of Kenya. According to the Respondent, the Award is illegal to the extent that it did not contain the juridical seat of arbitration contrary to the express provisions of section 32(4) of the Arbitration Act; arises from selective treatment of evidence, overlooks the legal principles on breach of contract, offends the law on interpretation of contracts, awards special damages not pleaded, and generally offends the tenets of fair trial as constitutionally guaranteed.
43. The term ‘contrary to Public Policy’ in arbitration circles has been the subject of interpretation in several cases, including the often-quoted case of Christ For All Nations vs Apollo Insurance Company Limited [2002] 2 E.A 366, where Ringera J. (as he then was), observed as follows: -
“…….an award could be set aside under Section 35(2)(b)(ii) of the Arbitration Act as being inconsistent with the public policy of Kenya if it was shown that it was either:(a) inconsistent with the constitution or other laws of Kenya, whether written or unwritten; (b)inimical to the national interest of Kenya; or (c) contrary to justice or morality.”
44. In the present case, the Applicant claimed breach of contract dated 26th July 2018 for the provision of security services by the Applicant at the Respondent’s premises at Ol Joro-Orok Athi River Farm, Head Office located at Nairobi and Kyuna House. According to the Applicant, the Respondent, vide a notice of termination dated 26th May 2021, unjustifiably terminated the contracts, and that at the time of termination, the Respondent was indebted to the Applicant in the sum of Kshs. 29,713,280.00 for the security services supplied prior to the termination. The Respondent filed its defence, disputing the claim. In the Award, the Arbitrator, after evaluating the evidence adduced by the parties, made a finding that the Respondent, in terminating the contract, did not adhere to Clause 10 of the Contract, which required prior written notification of the alleged default, prior to termination of the contract under Clause 6 thereof. The Arbitrator also found that the Respondent owed the Applicant a sum of Kshs. 124,213,280/- under the contract. I note that in reaching the above conclusion, the Arbitrator, at Paragraphs 7.1.3 and 7.1.4 of the Award, remarked that:
“7.1.3 The Statement of Account dated 5th July 2021, at pages 17 to 24 of the List and Bundle of Documents, was availed to the Respondent. Apart from making unsubstantiated allegations that the statement was not authentic for want of signature, the Respondent has not tendered any evidence to dispute the computation of the figures in the Statement of account to challenge the quantum being claimed. In the same Bundle at page 29, the Claimant availed a copy of a Statutory Demand dated 24th August 2021. This has not been disputed by the Respondent either, nor has the Respondent given any evidence to challenge the amount quoted therein.
7.1.4 At pages 30 to 36 of the Bundle of documents are correspondences on the money owed to the Claimant by the Respondent. Apart from denial of having received the correspondence, no evidence has been laid before the Tribunal challenging the amounts claimed as set out in the correspondences. There is no evidence that the Respondent either responded to these letters or disputed the amounts. In the premise the Tribunal finds and holds that: the amounts claimed by the Claimant in this Tribunal are undisputed.”
45. From the above, it is evident that the Arbitrator considered the evidence before him in line with his jurisdiction to consider the facts, evidence, and law. The arbitrator may have reached a wrong conclusion; however, whether the Arbitrator got it right or wrong is not a ground for intervention, especially on the basis of public policy.
46. In the case of Dinesh Construction Limited & another v Aircon Electra Services (Nairobi) Limited [2021] eKLR, Hon. Justice Majanja, faced with a similar issue, adopted the reasoning of the court in the case of Mahan Limited v Villa Care ML HC Misc. Civil App. No. 216 of 2018 [2019] eKLR that: -
“[9] It may well be that the conclusion reached by the Arbitrator is not sustainable in law yet by clause 13.2 (Dispute Resolution and Arbitration Clause) the parties made a covenant to each another that the decision of the Arbitrator would be final and binding on them. It must have been within the contemplation of the parties that the Arbitrator may sometimes get it wrong but they are happy to bind themselves to the risks involved in a final and binding clause and to live with the outcome absent the grounds in Section 35 of the Act.”
47. In the present case, Clause 11 (c) of the agreement between the parties expressly provides that the determination by the Arbitrator shall be final, conclusive, and binding upon them. The parties, when signing the agreement, must have contemplated that there are instances where the arbitrator may get it wrong, but nevertheless agreed to be bound by the arbitral award.
48. In the premises, I find and hold that the Applicant has not made out a case for setting aside the Award as being contrary to public policy.
49. Finally, the Respondent also alleged that the making of the arbitral award was induced or affected by undue influence and bias. - The Respondent asserts that the Award should be set aside per Section 35 of the Arbitration Act No.11 of 2009, relying on arguments about disputes falling outside the terms of reference, procedural irregularities, and the Award being induced by fraud, bribery, undue influence, or corruption.
50. From the record, I agree with the Applicant’s submissions that the above allegations by the Respondent are substantially similar to those which had been raised by the Respondent in the HCCOMMMISC/E552/2023: PRIMAROSA FLOWERS VS PEMWE SECURITY LIMITED, but which were dismissed by Visram J in his Ruling of 8th of October 2024. In the premises, I will not examine the submissions since doing so would amount to reviewing the decision of another court of concurrent jurisdiction.
51. In the premises, and having considered the submission of the Respondent, I find nothing in them in respect of which I can set aside the Arbitrator’s Award. As a result, I dismiss the Respondent’s application dated 7th May 2024 with costs to the Respondent.
Application dated 15th March 2024
52. Coming to the application dated 15th March 2024. The applicable law is Section 36 of the Arbitration Act, which sets out the legal parameters governing the enforcement and adoption of an arbitral award in the following terms:
“36. Recognition and enforcement of awards
(1) A domestic arbitral award shall be recognized as binding and, upon application in writing to the High Court, shall be enforced subject to this section and section 37.
(2) …………….
(3) Unless the High Court otherwise orders, the party relying on an arbitral award or applying for its enforcement shall furnish—
(a) the original arbitral award or a duly certified copy of it; and
(b) the original arbitration agreement or a duly certified copy of it.
53. In Samura Engineering Limited vs Don-Wood Co Ltd [2014] eKLR it was held: -
“Of course, section 36(1) of the Act requires an application in writing for recognition and enforcement of an award to be made. But the application is subject to sections 36 and 37 of the Act, and I should add, to the Constitution. Section 36(3) of the Act makes it mandatory that the party applying for recognition and enforcement of the award should file: 1) the duly authenticated original award or a duly certified copy of it; and 2) the original arbitration agreement or a certified copy of it. Doubtless, the award must be filed…”
54. Having carefully reviewed the Applicant’s notice of motion application together with the supporting affidavit and its attachments, and for the reasons aforestated, I find that the Applicant has met the preconditions set under Section 36 of the Act for the enforcement of the award. Further, I find no reason to warrant this Court’s refusal to register the Award for any of the reasons set out in Section 37(1) of the Act.
55. In conclusion, I find and hold that the application dated 15th March 2024 for adoption and recognition of the Final Arbitral Award issued by Frank Muchiri, MCIArb, on 15th January 2024 successful. The said Arbitral Award is hereby adopted and recognized as a judgment and decree of this court. The Application dated 7th May 2024 by Primarosa Flowers Ltd (Respondent herein) seeking to set aside the Arbitral Award is found to be without merit and is hereby dismissed in its entirety with costs.
56. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
24TH DAY OF APRIL, 2025
ADO MOSES
JUDGE