In the application dated 12.102.2022 the Applicants seek orders that the Award dated 24th June 2009 by Kairu Mbuthia, the Sole Arbitrator be recognized as binding and the same be enforced as decree of the court under the provisions of section 36 of the Arbitration Act. The other orders sought are consequential upon the Award and seek compliance therewith.
Mr Wangalwa, counsel for the Applicants, concedes that the Award was the subject of NRB HCCC No. 716 of 2005, Nyambura Mwangi and Stephen Maina and Others and that by a ruling dated 19th August 2009 (Sitati J.), the Award was duly recognized and adopted as a judgment of the court. In the circumstances, the application before the court is res-judicata, the issue of recognition and enforcement having been determined.
As regards the other orders, section 34 of the Civil Procedure Act provides that all matters and disputes concerning execution must be determined in the matter in which the court passed the decree and not in another suit. Since the prayers seek to enforce the decree already passed in the previous suit, this another suit and it is expressly prohibited by statute. The application is therefore an abuse of the court process.
The application dated 12th October 2022 is struck out with costs to the Respondents and Interested parties.
DATED and DELIVERED at NAIROBI this 13th day of APRIL 2023
D. S. MAJANJA
JUDGE