Background
1. For determination before this court are two applications, the first one is the Chamber Summons application dated 25th August 2021 brought by Richard Waweru Njoroge (hereinafter referred to as “the Applicant”) against Sylvana Mpabwana Ntaryamira (hereinafter referred to as “the Respondent”) and filed Milimani Misc Civil Application No. E371 of 2021 (this file) seeking the following orders:
i. Recognition of the Final Award published on 13th April, 2018 by Allen Waiyaki Gichuhi, C. Arb.
ii. Enforcement of the Final Award published on 13th April 2018 by Allen Waiyaki Gichuhi C. Arb as a decree of this Honourable Court.
iii. In default of the Respondent completing the sale, the Deputy Registrar be empowered to sign all documents necessary for signature by the Respondent, to ensure LR No. 27/158 (Original No. 27/14/22) IR No. 36698 is transferred and registered in favour of the Applicant, upon the Applicant depositing in court the balance of the purchase price less the costs of the Arbitration.
iv. The costs of the application.
2. The second Application is the Notice of Motion dated 15th July 2024 by the Respondent (Sylvana Mpabwana Ntaryamira) filed in the Milimani HCCC Misc. Civil Application No. 308 of 2018: Sylvana Mpabwana Ntaryamira v Richard Waweru Njoroge, seeking the following orders:
i. An order setting aside and/or vacating orders issued on 11th November, 2021, dismissing the suit herein and all consequential orders thereof.
ii. Reinstatement of the Applicant’s Chamber Summons application dated 4th July, 2018, for hearing on merits.
3. On 2nd October 2024, directions were given that both applications be heard together.
Chamber Summons Application dated 25th August 2021
4. The Applicant’s Chamber Summons is predicated on the supporting affidavit of Richard Waweru Njoroge, sworn on 26th August 2021, and a supplementary affidavit by the same person sworn on 27th June 2022.
5. In the main, the Applicant (Mr. Njoroge) seeks the recognition and enforcement of the Final Arbitral Award published on 13th April 2018 by Allen Waiyaki Gichuhi C. Arb.
6. In response, the Respondent filed a Replying affidavit sworn on 3rd May 2022 and a further Replying affidavit dated 25th September 2024, both sworn by Sylvana Mpabwanayo Ntarymaira, the Respondent therein.
7. The Respondent, while acknowledging the agreement for sale dated 5th March 2014 and the resultant Final Award dated 13th April 2018, avers that the Final Arbitration Award is not binding nor is it enforceable since the underlying agreement (sale agreement of 5th March 2014) had ceased to exists and was nolonger binding on the parties. According to the Respondent, the purchaser (Applicant herein) had received and acknowledged a refund of Kshs. 40,000,000/= and that the Respondent had taken possession and control of the subject matter – the residential property number LR 27/158 (original number 27/14/22), Nairobi.
8. It was further the Respondent’s position that the said sale agreement was terminated by the Respondent when the Applicant failed to pay the whole of the balance of the purchase price by 19th April 2014, within the 45 days’ timeline as per the sale agreement.
9. The other ground for termination of the agreement, according to the Respondent, was that the Applicant introduced a third party, Ifafa Engineering Services Limited, to acquire the property. This, according to the Respondent, evidenced that the Applicant was not financially able to pay for the property as per the agreement between the parties, but was instead speculating with the subject property at the Respondent’s expense.
10. The Respondent therefore asserted that there is no valid Arbitration Award that can be recognized as binding under the Arbitration Act No. 4 of 1995, as the Award presented is in violation of the Constitution of Kenya, 2010, and thus null and void. Further, the Arbitration Award violates Articles 20, 25 (c), 27, 40, 43, 47, 48, and 50 of the Constitution. She prayed that the Applicant’s application be dismissed with costs.
Notice of Motion Application dated 15th July 2024
11. This is an application by the Respondent (Sylvana Mpabwana Ntaryamira) and has been filed in the Milimani HCCC MISC Appl. No. 308 of 2018: Sylvana Mpabwana Ntaryamira v Richard Waweru Njoroge. The application seeks to vary the order of this court of 11th November, 2021, dismissing the Respondent’s Chamber Summons application dated 4th July, 2018, and reinstate the said application of 4th July 2018 (for setting aside the arbitral award in question) for hearing on merits.
12. The application is based on the grounds on the face of the application and supported by the affidavit sworn by the Respondent on 31st July 2014. According to the Respondent, the said application of 4th July 2018 was dismissed on 11th July 2021 due to the mistake of her Counsel, who failed to attend court on that day. That the Respondent deponed that she resides outside the country and only learnt of the dismissal of the application after she instructed the Counsel currently on record.
13. The Respondent maintains that she is keen in prosecuting the application and it would be interest of justice if the same were to be allowed, so that the application for setting aside the arbitral award – the application dated 4th July 2018 - may be be heard on merits.
14. The application was opposed by the Applicant, who filed a Replying affidavit sworn on 15th October 2024 by Mr. Richard Waweru Njoroge.
15. According to the Applicant, the Respondent’s application dated 4th July 2018, which she now seeks to have reinstated, sought in the main, the setting aside of the Arbitral Award made on 13th April 2018, but was dismissed by the Court on 11th July 2021 after the Respondent and her advocates failed to attend Court for the hearing of the Notice to Show Cause.
16. It was further deposed by Mr. Njoroge that apart from the instant application, the Respondent also filed the Constitutional Petition No. E244 of 2022 seeking inter alia, to have the Final Award of 13th April 2018 declared null and void, but the Petition was dismissed on 24th July 2023 due to the Respondent’s constant non-compliance with the court’s directions. Mr. Njoroge asserts that the failure by the Respondent to disclose this material information makes her undeserving of this court’s discretion being exercised in her favour.
17. It is further the Applicant’s position that while Ms. Sylvana seeks to reinstate the dismissed Chamber Summons Application dated 4th July 2018, the same orders are being sought by Ms. Sylvana in the Notice of Motion Application dated 3rd July 2024, filed in the Constitutional Division.
18. The Applicant therefore maintains that the action by the Respondent (Ms. Sylvana) is an abuse of the court processand therefore ought to be dismissed with costs.
Submissions
19. Following this Court’s directions of 2nd October 2024, the two applications were heard together, by way of written submissions.
20. In respect of the application dated 25th August 2021, the Applicant (Mr. Njoroge) filed submissions dated 25th January 2024, whilst the Respondent (Ms. Sylvana) filed submissions are dated 18th March 2024, and a Supplementary Submission dated 15th August 2024.
21. Regarding the Respondent’s (Sylvana’s) application dated 14th July 2024, the Respondent filed submissions dated 15th September 2024, whilst the Applicant (Mr. Njoroge) filed submissions dated 5th November 2024.
Applicant’s (Mr. Njoroge’s) Submissions
22. The Applicant in his submissions stated that vide an agreement for sale dated 5th March 2014, the Respondent offered to sell the Applicant land reference number 27/158 (original number 27/14/22). A dispute arose between the parties, resulting in a reference of the dispute to arbitration, and Mr. Allen Waiyaki Gichuhi SC was appointed as the sole Arbitrator to the dispute. The dispute was heard before the sole Arbitrator with a final Award published on 13th April 2018 as follows;
a) The Claimant (Applicant herein) is entitled to remedy of specific performance and an order for specific performance compelling the Respondent to complete the sale of all that parcel of land known as LR No. 27/158 (Original Number 27/14/22) comprised in the certificate of Title number IR 36698 as provided in the agreement for sale dated 5th March 2014 within 30 days from the collection of the Award in accordance with the terms of the agreement for sale dated 5th March 2014 be and is hereby issued.
b) The Applicant is not entitled to the sum of Kshs. 2, 286, 155.00, and the claim is hereby disallowed.
c) The claim for interest at prevailing commercial rates be and is hereby disallowed.
d) The Respondent shall pay the total sum of Kshs. 2, 032, 755.20 comprising the costs of the reference and the Arbitration costs, which sum shall be set off from the purchase price.
23. That the Respondent failed to make good the award and that instead of satisfying the Award, the Respondent filed a chamber summons in HCC Misc. 308 of 2018 Sylvana Mpabwana Ntaryamira vs Richard Njoroge Waweru on 9th July 2013 seeking to set aside the Final Award. The Respondent’s application was, however, dismissed for want of prosecution on 4th November 2021.
24. The Applicant maintains that he has complied with the requirements of Section 36 of the Arbitration Act, 1995, and has furnished this court with a duly certified copy of the Final Award published on 13th April 2018 and a certified copy of the agreement for sale dated 5th March 2014. It is further his position that the Respondent has not, whether in her pleadings or submissions, demonstrated to this court any ground to warrant this court’s refusal to recognize the award based on the circumstances set out under Section 37 of the Arbitration Act.
25. The Applicant asserted that the Respondent’s actions of seeking to have the arbitral award set aside are only aimed at delaying the enforcement of the Award. Consequently, the Applicant urged this court to allow the application as prayed, and have the Award recognised and enforced.
26. Regarding Ms. Syvana’s (the Respondent’s) application dated 15th July 2024, the Applicant reiterated the contents of his replying affidavit of 15th October 2024 and asserted that this Honourable Court lacks jurisdiction to entertain the Respondent’s application since the reliefs sought in the application – reinstatement of a dmissed application - is not one of those those powers granted to the High Court under the Arbitration Act.
27. The Applicant submitted that Section 10 of the Arbitration Act strictly limits the courts’ intervention in arbitration matters. In support of this argument, the Applicat relied on the case of Anne Mumbi Hinga v Victoria Njoki Gathara [2009]eKLR in support of this argument.
28. It was further the Applicant’s submissions that, due to the indolence on the part of the Respondent, and taking into account that the Respondent failed to disclose a material fact - that she filed a petition seeking to set aside the Arbitral Award, the Respondent does not deserve the court’s discretion being exercised in her favour.
Respondent’s submissions
29. In opposition to the Applicant’s application dated 25th August 2021 for recognition and enforcement of the arbitral Award, the Respondent submitted that the award is not only illegal but is also against the public policy since the arbitrator imposed his own terms, contrary to the underlying agreement of 5th March 2024 between the parties herein.
30. The Respondent submitted that the Learned Arbitrator, in issuing an order of specific performance, descended into the unholy arena of rewriting the agreement between the parties, which is contrary to established legal principles. The Respondent maintained that, according to the agreement of 5th March 2014, the only remedy agreed by the parties was payment of damages in the event of a breach.
31. The Respondent further submitted that since the dispute herein primarily involves the title and ownership of land, this Court lacks jurisdiction by dint of Article 165 (5) of the Constitution, which leaves jurisdiction in respect of such matters to the Environment and Land Court, under Article 162 (2) (b).
32. The Respondent maintained that it would be against public policy to allow the application for recognition and enforcement of the arbitral award, given the fact that the underlying contract – the contract of 5th March 2014 - had been rescinded, and the sum of Kshs. 40,000,000/- paid back by the Respondent to the Applicant’s Advocates.
33. In support of her application dated 15th July 2024, Ms. Sylvana submitted that the same should be allowed by this court in the interest of justice to enable her challenge the Arbitral Award on its merits. She maintained that she was not aware of the dismissal of the application, and only learnt of the same after instructing us to handle this matter. That in any event, the dismissal was due to the mistake of her previous Advocates, for which she should not be made to suffer.
34. Citing, among others, Article 47 of the Constitution, the Respondent submitted that she is entitled to a right to a fair hearing, which includes the right to adduce and challenge the evidence that the other party might have against her. She asserts that she has an arguable case with a very high likelihood of success, and it is only fair that she be accorded a fair chance to prosecute her case on its merits.
35. Ms. Sylvana therefore urged this court to exercise its discretion in her favour, and reinstate her application dated 4th July 2018 seeking the setting aside of the arbitral award since no prejudice would be suffered by the other party (Mr. Njoroge) if the application were to be allowed.
Analysis and determination
36. I have considered the two applications and find the following two issues arising for determination:-
i. Whether the application dated 15th July 2024 by the Respondent seeking the setting aside of this Court’s Order of 11th November 2021 and reinstatement of the Respondent’s application dated 4th July 2018 is merited
ii. Whether the Applicant’s application dated 25th August 2021 seeking the recognition and enforcement of the Arbitral Award published on 13th April, 2018 by Allen Waiyaki Gichuhi C. Arb. as a decree of this Court is merited.
37. From the record, I note that the application dated 15th July 2024 by the Respondent seeking the setting aside of this Court’s Order of 11th November 2021 and reinstatement of the Respondent’s application dated 4th July 2018 is expressed to have been brought under Order 12 Rule 7, Order 51 Rule 1 of the Civil Procedure Rules 2010, Sections 1A, 1B and 3A of the Civil Procedure Act.
38. Order 12 Rule 7 of the Civil Procedure Rules provides that where under this Order judgment has been entered or the suit has been dismissed, the court, on application, may set aside or vary the judgment or order upon such terms as may be just.
39. The Court of Appeal in Njue Njagi v. Ephantus Njiru & Another [2016] eKLR stated that dismissal of a suit for non-attendance by the plaintiff or for want of prosecution amounts to a judgment in that suit.
40. The court has discretion to set aside a judgment or order to avoid injustice or hardship resulting from an accident, inadvertence, or excusable mistake. See Shah v. Mbogo & Another [1967] E.A. 116, where the Court stated on the matter of discretion that:
“…the discretion to set aside an ex parte judgment is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error but it is not designed to assist a person who has deliberately sought, whether by evasion or otherwise to obstruct or delay the cause of justice”.
41. From the record, I note that the application by the Respondent dated 15th July 2024 seeks the reinstatement of a suit which was dismissed on 11th November 2021, which is almost three years back. There is obviously a delay on the part of the Respondent in bringing the application. In any event, I do not find the explanation advanced by the Respondent that she only recently became aware of the dismissal merited. The Court of Appeal in Cecilia Wanja Waweru v Jackson Wainaina Muiruri & another [2014] KECA 492 (KLR), while dismissing an application to reinstate an appeal on account of inordinate delay on the part of an applicant, stated that:
“We have to ask ourselves whether the failure by the appellant to prosecute the appeal in the High Court and/or the delay in filing the application for reinstatement constituted an excusable mistake or was it meant to deliberately delay the cause of justice. The appeal in the High Court was filed on 18th June, 1999 and dismissed for want of prosecution on 13th February, 2009, 10 years after. We note that no explanation was adduced by the appellant as to the steps, if any, she took to prosecute the appeal within the said period. The application seeking reinstatement of the appeal was filed on 13th May, 2013, four years after the dismissal. The reason advanced by the appellant for the delay in filing the application was that her advocates were never served with the notice of the court's intention to dismiss the appeal. The appellant only discovered the dismissal on 2nd April, 2013. Be as it may, why didn't the appellant peruse the court record earlier or follow up on the appeal? Why didn't she set the appeal down for hearing for almost 14 years? The reasonable explanation would be that the appellant had been indolent and had slept on her rights. She was only awakened from her slumber by the dismissal of the appeal.”
42. For the foregoing reasons, it is my finding that the delay in making the application for setting aside is inordinate and that no plausible explanation was given by the Applicant. The explanation by the Respondent that she resides outside the country is not, in my view, credible. The same applies to the account given by the Respondent that non-attendance was attributable to her Advocate. The Court of Appeal in Carla (Suing as the Administrator and Personal Representative of the Estate of Rossi Renata (Deceased)) v Marelli & 2 others [2025] KECA 38 (KLR), in dismissing a similar application, stated that a corollary to the maxim that mistakes of counsel should not be visited on a client is the equally forceful argument that legal business must be conducted efficiently.
43. Further, I note that the Applicant is guilty of material non-disclosure by failing to disclose to this Court that there is a similar application pending before the Constitutional Court in the HCCHRPET No. E244 of 2022, involving the same parties and same issues.
44. In any event, I agree with the Applicant’s argument that this court lacks jurisdiction to deal with the Respondent’s application dated 15th July 2024 to the extent that the same seeks the reinstatement of the application for setting aside an Arbitral Award which had been dismissed. The Jurisdiction of this Court, when dealing with arbitral matters, must always be exercised with Section 10 of the Arbitration Act in mind. The Section limits the Court’s intervention to the instances specified under the Act, which include Sections 35, 36, and 37 of the Act. There is nowhere in the Act where this Court is clothed with the power to deal with an application in the nature that is now being sought by the Respondent herein. In Anne Mumbi Hinga v Victoria Njoki Gathara [2009] eKLR, the Court of Appeal was clear that the Civil Procedure Act and the Rules made thereunder do not apply to arbitral proceedings. The Court stated that: -
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….”
45. 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 for setting aside the orders sought herein by the Respondent.
Application dated 25th August 2021
46. On the application dated 25th August 2021 for recognition and enforcement of the arbitral award brought under Section 36 of the Arbitration Act, I do not agree with the Respondent’s submissions that this Court lacks jurisdiction to deal with the same by dint of Section 162(2) (b) and Article 165 (5) of the Constitution of Kenya since the matter largely the use and occupation of, and title to, land.
47. It is the position of the Court that in arbitral proceedings, as the case herein, the High Court, when exercising its jurisdiction under Section 37 of the Arbitration Act, does not deal with a dispute relating to “the environment and the use and occupation of, and title to, land” within the meaning of Article 162(2) (b) of the Constition, but is simply enforcing the Arbitration Clause, which parties themselves chose to be bound.
48. Accordingly, I find that the argument by the Respondent that this Court lacks the requisite jurisdiction to deal with the matters raised in the Applicant’s application dated 25th August 2021 seeking recognition and enforcement of the arbitral award, not merited.
49. In any event, this court has not found any reason to believe that the dispute subject matter is not capable of settlement by arbitration under the law of Kenya or that the recognition or enforcement of the arbitral award would be contrary to Kenya's public policy.
50. The argument by the Respondent that the arbitral tribunal went outside the agreement by the parties, 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.”
51. In the premises, I find that the application dated 25th August 2021 is merited, and I therefore allow it with costs to the Applicant.
52. However, Prayer 3 of the application to the extent that it seeks the order of this Court empowering the Deputy Registrar to sign and or execute all documents necessary for signature by the Respondent, to ensure LR No. 27/158 (Original No. 27/14/22) IR No. 36698 is transferred and registered in favour of the Applicant is declined. It is the position of this Court that such an order can only be made in the execution proceedings, and not by this Court exercising its jurisdiction under Section 37 of the Arbitration Act.
Disposition
53. In the final analysis, and taking into account the above discussions, I do find and make the following orders:-
i. The application dated 25th August 2021 by Richard Waweru Njoroge (the Applicant in the Milimani HCCC Misc. Civil Application No E371 of 2021) is hereby allowed to the following extent:-
a. The Arbitral Award published on 13th April, 2018 by Allen Waiyaki Gichuhi C. Arb. is hereby recognised and is to be enforced as a decree of this Court.
b. Prayer 3 of the application is hereby declined.
ii. The application dated 15th July 2024 (filed in the Milimani HCCC Misc. Civil Application No. 308 of 2018) by Sylvana Mpabwanayo Ntyaryamira (referred to as the Respondent in this Ruling) is hereby dismissed.
iii. This Ruling to be filed both in this file (Milimani HCCC Misc. Civil Application No E371 of 2021), and in the Milimani HCCC Misc. Civil Application No. 308 of 2018.
iv. Both files are hereby closed.
54. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
24TH DAY OF APRIL, 2025
ADO MOSES
JUDGE