By Chamber Summons dated 20th November, 2025, which is expressed to be brought under sections 32A and 35(2) of the Arbitration Act, sections 1A, 1B, 3A and 34 of the Civil Procedure Act, Order 46 Rule 16(1)(a) and (3) of the Civil Procedure Rules, Articles 23, 47, 48, 159(2)(c) and 165 of the Constitution and all other enabling provisions of the law, the Applicant is seeking for the following orders:
a. That the Application herein be certified as urgent and apt for hearing and determination on a priority basis.
b. That an order for stay of recognition and enforcement of the Arbitral Award of the Sole Arbitrator, Mr J. K. Mwangi, dated 22nd October, 2025 in the arbitration between the Applicant and the Respondent do issue pending the hearing and determination of this Application.
c. That an order setting aside the Arbitral Award of the Sole Arbitrator, Mr J. K. Mwangi, dated 22nd October, 2025 be granted.
d. That costs of this Application be borne by the Respondent.
e. That this Honourable Court be pleased to make such further or other orders as it may deem appropriate, including remitting the Award to an alternative Arbitral Tribunal for corrective action or any other competent forum.
2. The Application is based on the grounds on the face of it, the Supporting Affidavit of Oliver Kibira sworn on 20th November, 2025 and the annextures thereto.
3. The Respondent opposed the Application through a Replying Affidavit sworn by Istahil Ali Abdi on 21st January, 2026 and Grounds of Opposition dated 21st January, 2026.
4. The dispute arose from a Letter of Offer dated 7th March, 2018 and a Sale Agreement dated 8th October, 2018 for the purchase by the Respondent of Apartment Number 106 at Marina Heights for Kshs.17,000,000/=. The Respondent paid the Applicant Kshs.11,300,000/=. The apartment was not completed by the projected date and was subsequently sold to a third party. The Applicant issued refund cheques totaling Kshs.10,670,000/=, some of which were honoured, others dishonoured, and others not banked.
5. The Respondent thereafter filed Nairobi CMCC No. E4476 of 2023 seeking recovery of Kshs.7,800,000/=. By a ruling delivered on 13th September, 2024, the Magistrate’s Court entered partial judgment in favour of the Respondent for Kshs.3,900,000/= together with interest and referred the disputed balance to arbitration.
6. Mr J. K. Mwangi was appointed Sole Arbitrator by the Chairperson of the Chartered Institute of Arbitrators, Kenya Branch. At the preliminary meeting held on 22nd April, 2025, the parties stated that they had no objection to his appointment and agreed on the procedure. The parties filed their respective pleadings, documents and witness statements. Each party called one witness at the oral hearing and later filed written submissions.
7. The Arbitrator published his Award on 22nd October, 2025. He found that the Applicant breached the Agreement by failing to complete construction within the agreed period without issuing notice of extension. He further found that the sale of the apartment to a third party and issuance of refund cheques were inconsistent with the Applicant’s position that the Respondent remained bound to complete payment of the purchase price.
8. The Arbitrator awarded the Respondent Kshs.3,900,000/= together with interest at court rates from 24th October, 2023 until payment in full, costs of the arbitration and Kshs.507,500/= as costs of the Award. He disallowed the Respondent’s additional claim of Kshs.500,000/= as penalties for the dishonoured cheques.
9. The Applicant’s contention is that the Arbitrator misinterpreted the terms of the Agreement and failed to give effect to the unconditional payment plan. It states that the Respondent had not paid the full purchase price, that the Arbitrator preferred clause 7.14 on notice of delayed completion while failing to give due effect to clause 4.2 and that, at the very least, the Arbitrator ought to have found that both parties were in breach.
10. The Applicant also faults the Arbitrator for treating the refund cheques as admissions and as evidence of a fresh agreement between the parties. Its position is that the cheques were issued in good faith pending reconciliation and that the Arbitrator disregarded the evidence explaining the circumstances under which they were issued.
11. The Applicant further alleges that the Arbitrator was biased and unduly influenced. According to the Applicant, the Arbitrator focused on the Respondent’s case, relied on an alleged secret sale to a third party, disregarded the Applicant’s evidence and reached findings which were inconsistent, unjust and contrary to the public policy of Kenya.
12. The Respondent’s position is that section 35(2) of the Arbitration Act sets out an exhaustive framework for setting aside an arbitral award and that the Applicant has not established any of the statutory grounds. She states that the Applicant is inviting the Court to reconsider the Arbitrator’s findings of fact, interpretation of the Agreement and evaluation of the evidence, yet this Court does not sit on appeal over an arbitral award.
13. On the allegation of bias, the Respondent states that the Applicant accepted the appointment of the Arbitrator and the agreed procedure without objection and participated fully in the proceedings. She adds that before delivery of the Award, the Arbitrator disclosed to both parties that an officer of the Applicant had sought a private meeting, which request the Arbitrator declined. No objection was raised by the Applicant at the time.
14. The Respondent further states that both parties were allowed to present their evidence, examine witnesses and file submissions. She therefore contends that the Applicant has not demonstrated procedural unfairness, excess of jurisdiction, a real likelihood of bias or any violation of public policy capable of attracting the intervention of this Court under section 35(2) of the Arbitration Act.
15. The parties canvassed the Application by way of written submissions. The Applicant relied, inter alia, on Ujenzi Bora Investment Limited v Africa Forest Lodges Limited [2020] KEHC 6203 (KLR), Equatorial Commercial Bank v Wilfred Nyasimu Oroko [2015] KEHC 8122 (KLR), Njau v Ngungu [2025] KEHC 3348 (KLR) and National Oil Corporation of Kenya Limited v Prisko Petroleum Network Limited [2014] KEHC 8680 (KLR).
16. The Respondent relied, among other authorities, on Nyutu Agrovet Limited v Airtel Networks Kenya Limited; Chartered Institute of Arbitrators-Kenya Branch (Interested Party) [2019] KESC 11 (KLR), Rentworks East Africa Limited v Kenya Airways Limited [2020] KEHC 9728 (KLR), D. Manji Construction Limited v C & R Holdings Limited [2014] KEHC 8048 (KLR) and National Oil Corporation of Kenya Limited v Prisko Petroleum Network Limited [2014].
Analysis and Determination
17. I have carefully read the affidavit evidence on record in support and in opposition to the Application. I have also considered the written submissions of learned Counsel, the cited authorities and the Arbitral Award dated 22nd October, 2025. This Court must be careful not to be drawn into a reconsideration of the merits of the dispute which the parties voluntarily submitted to arbitration. The Application raises the following issues for determination:
i). Whether the Award was induced or affected by undue influence or is vitiated by bias or procedural unfairness.
ii). Whether the Award is in conflict with the public policy of Kenya.
iii). Whether the Court may remit the matter to an alternative Arbitral Tribunal.
18. Section 10 of the Arbitration Act provides that except as provided in the Act, no Court shall intervene in matters governed by the Act. Section 32A further provides that, except as otherwise agreed by the parties, an arbitral award is final and binding and no recourse is available against it otherwise than in the manner provided by the Act.
19. The jurisdiction of this Court is therefore circumscribed by section 35 of the Arbitration Act. Under section 35(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.”
an award may be set aside only where the Applicant furnishes proof of one of the grounds specified therein or where the Court finds that the subject matter is incapable of settlement by arbitration or that the Award is in conflict with the public policy of Kenya.
20. In Nyutu Agrovet Limited v Airtel Networks Kenya Limited; Chartered Institute of Arbitrators-Kenya Branch (Interested Party) [2019] KESC 11 (KLR), the Supreme Court emphasized that judicial intervention should not be used as an opportunity to delve into the merits of an arbitral award and must remain limited to the narrowly circumscribed instances provided by law. The parties are entitled to a decision made within the scope of their reference and through a fair process. They are not entitled to have the High Court correct every alleged error of fact, law or contractual interpretation.
21. The same principle is reflected in Kenya Shell Limited v Kobil Petroleum Limited [2006] KECA 389 (KLR), Anne Mumbi Hinga v Victoria Njoki Gathara [2009] KECA 466 (KLR) and Synergy Industrial Credit Limited v Cape Holdings Limited [2019] KESC 12 (KLR). The policy of the Arbitration Act is to respect party autonomy and the finality of the dispute resolution mechanism chosen by the parties.
22. The first issue concerns the allegation that the Arbitrator was biased and unduly influenced. Section 35(2)(a)(vi) requires a party seeking to set aside an Award to furnish proof that the making of the Award was induced or affected by fraud, bribery, undue influence or corruption. The allegation must be supported by tangible evidence and must bear a causal connection to the making of the Award.
23. In the instant case, the Supporting Affidavit does not identify the person who allegedly influenced the Arbitrator, the act constituting undue influence, when it occurred or the manner in which it affected the Award. The allegation is inferred from the fact that the Arbitrator rejected the Applicant’s interpretation of the Agreement and evidence. An adverse finding, without more, is not proof of bias or undue influence.
24. The material before Court shows that the Applicant accepted the appointment of the Arbitrator, participated in the preliminary meeting, agreed on the procedure, filed its pleadings and documents, called a witness, cross-examined the Respondent’s witness and filed written submissions. No contemporaneous objection was raised concerning the Arbitrator’s independence or conduct.
25. The Respondent has also exhibited evidence that before delivery of the Award, the Arbitrator disclosed that an officer of the Applicant had requested a private meeting. The Arbitrator declined the request and informed both parties. No objection was raised by the Applicant. Far from establishing undue influence, that conduct demonstrates an attempt by the Arbitrator to preserve the integrity of the proceedings.
26. Section 5 of the Arbitration Act provides that a party who knows that a derogable provision of the Act or a requirement under the arbitration agreement has not been complied with and proceeds without stating its objection within the prescribed time is deemed to have waived the right to object. A party cannot participate in the reference without protest and only challenge the Arbitrator’s impartiality after an unfavourable Award, in the absence of a subsequently discovered and proved disqualifying fact.
27. The Award itself captures the Applicant’s position on non-payment of the full purchase price, clauses 4.1 and 4.2 of the Agreement, the alleged forfeiture of 20% of the purchase price and the explanation concerning the refund cheques. The Arbitrator considered those matters and gave reasons for rejecting the Applicant’s case. He also rejected the Respondent’s claim for Kshs.500,000/= as penalties for the dishonoured cheques. In the circumstances, this Court is unable to find that the proceedings or the Award demonstrate bias, undue influence or denial of a fair opportunity to present the Applicant’s case.
28. The second issue is whether the Award is in conflict with the public policy of Kenya. In Christ for All Nations v Apollo Insurance Company Limited [2002] 2 EA 366, the Court stated that an Award may be set aside on this ground if it is shown to be inconsistent with the Constitution or other laws of Kenya, inimical to the national interest or contrary to justice and morality.
29. The public policy exception must however be approached with caution. In Anne Mumbi Hinga v Victoria Njoki Gathara (2009), the Court of Appeal observed that the finality and enforcement of arbitral awards is itself an important public policy. A party cannot therefore rely on the broad expression ‘public policy’ to invite the Court to rehear the merits of an arbitral dispute.
30. The Applicant complains that the Arbitrator gave greater weight to clause 7.14 than clause 4.2, found that the sale of the apartment to a third party amounted to breach, treated the refund cheques as admissions and concluded that the parties had abandoned the Sale Agreement and entered into a refund arrangement. These were matters of contractual interpretation and evaluation of evidence falling within the Arbitrator’s mandate.
31. In D. Manji Construction Limited v C & R Holdings Limited [2014] KEHC 8048 (KLR), the Court held that complaints concerning alleged erroneous findings, disregard of evidence and factual determinations fall within the competence of the Arbitrator as the master of facts and do not, without more, establish a ground for setting aside an Award. The Court may have reached a different conclusion, but that is not the test under section 35.
32. The Applicant’s authorities on admissions do not alter the above position. Equatorial Commercial Bank v Wilfred Nyasimu Oroko and Njau v Ngungu concern the evidential character of cheques in applications for judgment on admission. They do not establish that every arguable error in the weight attributed to a cheque constitutes a violation of public policy. Whether the cheques, admitted payments, resale of the apartment and the parties’ subsequent conduct established a refund agreement was a question placed before the Arbitrator for determination.
33. The Applicant also relied on Ujenzi Bora Investment Limited v Africa Forest Lodges Limited [2020] KEHC 6203 KLR. In that matter, the Court identified a specific difficulty in the tribunal’s reliance on material whose limitations the tribunal had itself acknowledged and invoked the remission mechanism under section 35(4). The decision does not stand for the proposition that disagreement with an Arbitrator’s assessment of contested evidence is sufficient to set aside an Award.
34. In the instant case, the payment history, delay in completion, sale to a third party, refund cheques and reconciliation were all pleaded and canvassed at an oral hearing. The Arbitrator identified the issues for determination, analysed the parties’ respective cases and gave reasons for his decision. The complaints raised by the Applicant would require this Court to reconsider the same evidence and substitute its interpretation of the Agreement for that of the Arbitrator. This Court has no such appellate jurisdiction under section 35.
35. The Court also notes that the Award does not, on the material placed before it, duplicate the partial decree of the Magistrate’s Court. The claim before the Magistrate’s Court was for Kshs.7,800,000/=. The Magistrate’s Court entered judgment for the admitted sum of Kshs.3,900,000/= and referred the disputed balance to arbitration. The Arbitral Award addressed the disputed balance. The Applicant has not demonstrated illegality or double recovery.
36. The Applicant invoked the doctrines of privity and freedom of contract. Those doctrines do not assist its application. The Award does not impose obligations upon a stranger to the Agreement. It resolves a dispute between the contracting parties themselves. Further, freedom of contract does not prevent an arbitral tribunal from determining whether the parties breached, varied, rescinded or discharged their contractual obligations by subsequent agreement or conduct. Whether the refund cheques and the parties’ conduct produced that legal effect was one of the questions submitted to the Arbitrator.
37. The Award of interest does not disclose a public policy violation. Section 32C of the Arbitration Act expressly authorizes an arbitral tribunal, unless the parties agree otherwise, to award simple or compound interest at such rate and for such period as the tribunal considers just. The Respondent prayed for interest and the Arbitrator gave reasons for awarding it from the date the suit was filed. The correctness of that exercise of discretion is not an appeal available under section 35.
38. The Court also notes that the Supporting Affidavit was sworn by learned Counsel who did not represent the Applicant during the arbitral hearing. Allegations concerning what occurred during the hearing, the evidence allegedly ignored and the Arbitrator’s state of mind required either personal knowledge or disclosure of the source of information. No source was disclosed for the allegation of undue influence. While this does not render the entire Affidavit inadmissible, it materially weakens the probative value of the grave allegations made.
39. Taking the totality of the material before this Court, the Applicant has not shown that the Award is inconsistent with the Constitution or any written law, inimical to the national interest or contrary to justice and morality. What has been demonstrated is disagreement with the Arbitrator’s interpretation of the Agreement and assessment of the evidence. That is not sufficient to invoke section 35(2)(b)(ii) of the Arbitration Act.
40. The final issue concerns the prayer that the matter be remitted to an alternative Arbitral Tribunal. Section 35(4) permits the High Court, where appropriate and if requested by a party, to suspend setting aside proceedings in order to give the arbitral tribunal an opportunity to resume the proceedings or take such action as may eliminate the grounds for setting aside the Award.
41. The provision is a curative mechanism directed to the existing tribunal. It does not confer upon the Court power to appoint a different tribunal to rehear the merits. In any event, the Applicant has not established a remediable defect under section 35 and there is no basis to suspend these proceedings for remission.
42. The prayer for stay of recognition and enforcement pending determination of this Application is spent upon delivery of this Ruling. There is no separate application before this court for recognition and enforcement under sections 36 and 37 of the Arbitration Act. It would therefore be improper to make an enforcement order in the present Application.
43. The upshot is that the Chamber Summons dated 20th November, 2025 is dismissed with costs to the Respondent.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 30TH DAY OF JULY, 2026 VIRTUALLY THROUGH THE MICROSOFT TEAMS PLATFORM.
KENNEDY KANDET
JUDGE
IN THE PRESENCE OF:
KIBIRA FOR THE APPELLANT
DADU FOR THE RESPONDET.
COURT ASSISTANT: AGGREY
a. That the Application herein be certified as urgent and apt for hearing and determination on a priority basis.
b. That an order for stay of recognition and enforcement of the Arbitral Award of the Sole Arbitrator, Mr J. K. Mwangi, dated 22nd October, 2025 in the arbitration between the Applicant and the Respondent do issue pending the hearing and determination of this Application.
c. That an order setting aside the Arbitral Award of the Sole Arbitrator, Mr J. K. Mwangi, dated 22nd October, 2025 be granted.
d. That costs of this Application be borne by the Respondent.
e. That this Honourable Court be pleased to make such further or other orders as it may deem appropriate, including remitting the Award to an alternative Arbitral Tribunal for corrective action or any other competent forum.
2. The Application is based on the grounds on the face of it, the Supporting Affidavit of Oliver Kibira sworn on 20th November, 2025 and the annextures thereto.
3. The Respondent opposed the Application through a Replying Affidavit sworn by Istahil Ali Abdi on 21st January, 2026 and Grounds of Opposition dated 21st January, 2026.
4. The dispute arose from a Letter of Offer dated 7th March, 2018 and a Sale Agreement dated 8th October, 2018 for the purchase by the Respondent of Apartment Number 106 at Marina Heights for Kshs.17,000,000/=. The Respondent paid the Applicant Kshs.11,300,000/=. The apartment was not completed by the projected date and was subsequently sold to a third party. The Applicant issued refund cheques totaling Kshs.10,670,000/=, some of which were honoured, others dishonoured, and others not banked.
5. The Respondent thereafter filed Nairobi CMCC No. E4476 of 2023 seeking recovery of Kshs.7,800,000/=. By a ruling delivered on 13th September, 2024, the Magistrate’s Court entered partial judgment in favour of the Respondent for Kshs.3,900,000/= together with interest and referred the disputed balance to arbitration.
6. Mr J. K. Mwangi was appointed Sole Arbitrator by the Chairperson of the Chartered Institute of Arbitrators, Kenya Branch. At the preliminary meeting held on 22nd April, 2025, the parties stated that they had no objection to his appointment and agreed on the procedure. The parties filed their respective pleadings, documents and witness statements. Each party called one witness at the oral hearing and later filed written submissions.
7. The Arbitrator published his Award on 22nd October, 2025. He found that the Applicant breached the Agreement by failing to complete construction within the agreed period without issuing notice of extension. He further found that the sale of the apartment to a third party and issuance of refund cheques were inconsistent with the Applicant’s position that the Respondent remained bound to complete payment of the purchase price.
8. The Arbitrator awarded the Respondent Kshs.3,900,000/= together with interest at court rates from 24th October, 2023 until payment in full, costs of the arbitration and Kshs.507,500/= as costs of the Award. He disallowed the Respondent’s additional claim of Kshs.500,000/= as penalties for the dishonoured cheques.
9. The Applicant’s contention is that the Arbitrator misinterpreted the terms of the Agreement and failed to give effect to the unconditional payment plan. It states that the Respondent had not paid the full purchase price, that the Arbitrator preferred clause 7.14 on notice of delayed completion while failing to give due effect to clause 4.2 and that, at the very least, the Arbitrator ought to have found that both parties were in breach.
10. The Applicant also faults the Arbitrator for treating the refund cheques as admissions and as evidence of a fresh agreement between the parties. Its position is that the cheques were issued in good faith pending reconciliation and that the Arbitrator disregarded the evidence explaining the circumstances under which they were issued.
11. The Applicant further alleges that the Arbitrator was biased and unduly influenced. According to the Applicant, the Arbitrator focused on the Respondent’s case, relied on an alleged secret sale to a third party, disregarded the Applicant’s evidence and reached findings which were inconsistent, unjust and contrary to the public policy of Kenya.
12. The Respondent’s position is that section 35(2) of the Arbitration Act sets out an exhaustive framework for setting aside an arbitral award and that the Applicant has not established any of the statutory grounds. She states that the Applicant is inviting the Court to reconsider the Arbitrator’s findings of fact, interpretation of the Agreement and evaluation of the evidence, yet this Court does not sit on appeal over an arbitral award.
13. On the allegation of bias, the Respondent states that the Applicant accepted the appointment of the Arbitrator and the agreed procedure without objection and participated fully in the proceedings. She adds that before delivery of the Award, the Arbitrator disclosed to both parties that an officer of the Applicant had sought a private meeting, which request the Arbitrator declined. No objection was raised by the Applicant at the time.
14. The Respondent further states that both parties were allowed to present their evidence, examine witnesses and file submissions. She therefore contends that the Applicant has not demonstrated procedural unfairness, excess of jurisdiction, a real likelihood of bias or any violation of public policy capable of attracting the intervention of this Court under section 35(2) of the Arbitration Act.
15. The parties canvassed the Application by way of written submissions. The Applicant relied, inter alia, on Ujenzi Bora Investment Limited v Africa Forest Lodges Limited [2020] KEHC 6203 (KLR), Equatorial Commercial Bank v Wilfred Nyasimu Oroko [2015] KEHC 8122 (KLR), Njau v Ngungu [2025] KEHC 3348 (KLR) and National Oil Corporation of Kenya Limited v Prisko Petroleum Network Limited [2014] KEHC 8680 (KLR).
16. The Respondent relied, among other authorities, on Nyutu Agrovet Limited v Airtel Networks Kenya Limited; Chartered Institute of Arbitrators-Kenya Branch (Interested Party) [2019] KESC 11 (KLR), Rentworks East Africa Limited v Kenya Airways Limited [2020] KEHC 9728 (KLR), D. Manji Construction Limited v C & R Holdings Limited [2014] KEHC 8048 (KLR) and National Oil Corporation of Kenya Limited v Prisko Petroleum Network Limited [2014].
Analysis and Determination
17. I have carefully read the affidavit evidence on record in support and in opposition to the Application. I have also considered the written submissions of learned Counsel, the cited authorities and the Arbitral Award dated 22nd October, 2025. This Court must be careful not to be drawn into a reconsideration of the merits of the dispute which the parties voluntarily submitted to arbitration. The Application raises the following issues for determination:
i). Whether the Award was induced or affected by undue influence or is vitiated by bias or procedural unfairness.
ii). Whether the Award is in conflict with the public policy of Kenya.
iii). Whether the Court may remit the matter to an alternative Arbitral Tribunal.
18. Section 10 of the Arbitration Act provides that except as provided in the Act, no Court shall intervene in matters governed by the Act. Section 32A further provides that, except as otherwise agreed by the parties, an arbitral award is final and binding and no recourse is available against it otherwise than in the manner provided by the Act.
19. The jurisdiction of this Court is therefore circumscribed by section 35 of the Arbitration Act. Under section 35(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.”
an award may be set aside only where the Applicant furnishes proof of one of the grounds specified therein or where the Court finds that the subject matter is incapable of settlement by arbitration or that the Award is in conflict with the public policy of Kenya.
20. In Nyutu Agrovet Limited v Airtel Networks Kenya Limited; Chartered Institute of Arbitrators-Kenya Branch (Interested Party) [2019] KESC 11 (KLR), the Supreme Court emphasized that judicial intervention should not be used as an opportunity to delve into the merits of an arbitral award and must remain limited to the narrowly circumscribed instances provided by law. The parties are entitled to a decision made within the scope of their reference and through a fair process. They are not entitled to have the High Court correct every alleged error of fact, law or contractual interpretation.
21. The same principle is reflected in Kenya Shell Limited v Kobil Petroleum Limited [2006] KECA 389 (KLR), Anne Mumbi Hinga v Victoria Njoki Gathara [2009] KECA 466 (KLR) and Synergy Industrial Credit Limited v Cape Holdings Limited [2019] KESC 12 (KLR). The policy of the Arbitration Act is to respect party autonomy and the finality of the dispute resolution mechanism chosen by the parties.
22. The first issue concerns the allegation that the Arbitrator was biased and unduly influenced. Section 35(2)(a)(vi) requires a party seeking to set aside an Award to furnish proof that the making of the Award was induced or affected by fraud, bribery, undue influence or corruption. The allegation must be supported by tangible evidence and must bear a causal connection to the making of the Award.
23. In the instant case, the Supporting Affidavit does not identify the person who allegedly influenced the Arbitrator, the act constituting undue influence, when it occurred or the manner in which it affected the Award. The allegation is inferred from the fact that the Arbitrator rejected the Applicant’s interpretation of the Agreement and evidence. An adverse finding, without more, is not proof of bias or undue influence.
24. The material before Court shows that the Applicant accepted the appointment of the Arbitrator, participated in the preliminary meeting, agreed on the procedure, filed its pleadings and documents, called a witness, cross-examined the Respondent’s witness and filed written submissions. No contemporaneous objection was raised concerning the Arbitrator’s independence or conduct.
25. The Respondent has also exhibited evidence that before delivery of the Award, the Arbitrator disclosed that an officer of the Applicant had requested a private meeting. The Arbitrator declined the request and informed both parties. No objection was raised by the Applicant. Far from establishing undue influence, that conduct demonstrates an attempt by the Arbitrator to preserve the integrity of the proceedings.
26. Section 5 of the Arbitration Act provides that a party who knows that a derogable provision of the Act or a requirement under the arbitration agreement has not been complied with and proceeds without stating its objection within the prescribed time is deemed to have waived the right to object. A party cannot participate in the reference without protest and only challenge the Arbitrator’s impartiality after an unfavourable Award, in the absence of a subsequently discovered and proved disqualifying fact.
27. The Award itself captures the Applicant’s position on non-payment of the full purchase price, clauses 4.1 and 4.2 of the Agreement, the alleged forfeiture of 20% of the purchase price and the explanation concerning the refund cheques. The Arbitrator considered those matters and gave reasons for rejecting the Applicant’s case. He also rejected the Respondent’s claim for Kshs.500,000/= as penalties for the dishonoured cheques. In the circumstances, this Court is unable to find that the proceedings or the Award demonstrate bias, undue influence or denial of a fair opportunity to present the Applicant’s case.
28. The second issue is whether the Award is in conflict with the public policy of Kenya. In Christ for All Nations v Apollo Insurance Company Limited [2002] 2 EA 366, the Court stated that an Award may be set aside on this ground if it is shown to be inconsistent with the Constitution or other laws of Kenya, inimical to the national interest or contrary to justice and morality.
29. The public policy exception must however be approached with caution. In Anne Mumbi Hinga v Victoria Njoki Gathara (2009), the Court of Appeal observed that the finality and enforcement of arbitral awards is itself an important public policy. A party cannot therefore rely on the broad expression ‘public policy’ to invite the Court to rehear the merits of an arbitral dispute.
30. The Applicant complains that the Arbitrator gave greater weight to clause 7.14 than clause 4.2, found that the sale of the apartment to a third party amounted to breach, treated the refund cheques as admissions and concluded that the parties had abandoned the Sale Agreement and entered into a refund arrangement. These were matters of contractual interpretation and evaluation of evidence falling within the Arbitrator’s mandate.
31. In D. Manji Construction Limited v C & R Holdings Limited [2014] KEHC 8048 (KLR), the Court held that complaints concerning alleged erroneous findings, disregard of evidence and factual determinations fall within the competence of the Arbitrator as the master of facts and do not, without more, establish a ground for setting aside an Award. The Court may have reached a different conclusion, but that is not the test under section 35.
32. The Applicant’s authorities on admissions do not alter the above position. Equatorial Commercial Bank v Wilfred Nyasimu Oroko and Njau v Ngungu concern the evidential character of cheques in applications for judgment on admission. They do not establish that every arguable error in the weight attributed to a cheque constitutes a violation of public policy. Whether the cheques, admitted payments, resale of the apartment and the parties’ subsequent conduct established a refund agreement was a question placed before the Arbitrator for determination.
33. The Applicant also relied on Ujenzi Bora Investment Limited v Africa Forest Lodges Limited [2020] KEHC 6203 KLR. In that matter, the Court identified a specific difficulty in the tribunal’s reliance on material whose limitations the tribunal had itself acknowledged and invoked the remission mechanism under section 35(4). The decision does not stand for the proposition that disagreement with an Arbitrator’s assessment of contested evidence is sufficient to set aside an Award.
34. In the instant case, the payment history, delay in completion, sale to a third party, refund cheques and reconciliation were all pleaded and canvassed at an oral hearing. The Arbitrator identified the issues for determination, analysed the parties’ respective cases and gave reasons for his decision. The complaints raised by the Applicant would require this Court to reconsider the same evidence and substitute its interpretation of the Agreement for that of the Arbitrator. This Court has no such appellate jurisdiction under section 35.
35. The Court also notes that the Award does not, on the material placed before it, duplicate the partial decree of the Magistrate’s Court. The claim before the Magistrate’s Court was for Kshs.7,800,000/=. The Magistrate’s Court entered judgment for the admitted sum of Kshs.3,900,000/= and referred the disputed balance to arbitration. The Arbitral Award addressed the disputed balance. The Applicant has not demonstrated illegality or double recovery.
36. The Applicant invoked the doctrines of privity and freedom of contract. Those doctrines do not assist its application. The Award does not impose obligations upon a stranger to the Agreement. It resolves a dispute between the contracting parties themselves. Further, freedom of contract does not prevent an arbitral tribunal from determining whether the parties breached, varied, rescinded or discharged their contractual obligations by subsequent agreement or conduct. Whether the refund cheques and the parties’ conduct produced that legal effect was one of the questions submitted to the Arbitrator.
37. The Award of interest does not disclose a public policy violation. Section 32C of the Arbitration Act expressly authorizes an arbitral tribunal, unless the parties agree otherwise, to award simple or compound interest at such rate and for such period as the tribunal considers just. The Respondent prayed for interest and the Arbitrator gave reasons for awarding it from the date the suit was filed. The correctness of that exercise of discretion is not an appeal available under section 35.
38. The Court also notes that the Supporting Affidavit was sworn by learned Counsel who did not represent the Applicant during the arbitral hearing. Allegations concerning what occurred during the hearing, the evidence allegedly ignored and the Arbitrator’s state of mind required either personal knowledge or disclosure of the source of information. No source was disclosed for the allegation of undue influence. While this does not render the entire Affidavit inadmissible, it materially weakens the probative value of the grave allegations made.
39. Taking the totality of the material before this Court, the Applicant has not shown that the Award is inconsistent with the Constitution or any written law, inimical to the national interest or contrary to justice and morality. What has been demonstrated is disagreement with the Arbitrator’s interpretation of the Agreement and assessment of the evidence. That is not sufficient to invoke section 35(2)(b)(ii) of the Arbitration Act.
40. The final issue concerns the prayer that the matter be remitted to an alternative Arbitral Tribunal. Section 35(4) permits the High Court, where appropriate and if requested by a party, to suspend setting aside proceedings in order to give the arbitral tribunal an opportunity to resume the proceedings or take such action as may eliminate the grounds for setting aside the Award.
41. The provision is a curative mechanism directed to the existing tribunal. It does not confer upon the Court power to appoint a different tribunal to rehear the merits. In any event, the Applicant has not established a remediable defect under section 35 and there is no basis to suspend these proceedings for remission.
42. The prayer for stay of recognition and enforcement pending determination of this Application is spent upon delivery of this Ruling. There is no separate application before this court for recognition and enforcement under sections 36 and 37 of the Arbitration Act. It would therefore be improper to make an enforcement order in the present Application.
43. The upshot is that the Chamber Summons dated 20th November, 2025 is dismissed with costs to the Respondent.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 30TH DAY OF JULY, 2026 VIRTUALLY THROUGH THE MICROSOFT TEAMS PLATFORM.
KENNEDY KANDET
JUDGE
IN THE PRESENCE OF:
KIBIRA FOR THE APPELLANT
DADU FOR THE RESPONDET.
COURT ASSISTANT: AGGREY