1. The jurisdiction of this Court is invoked to balance the finality of an arbitral process against the substantive rights of a party lawfully extricated from it. This Court is called upon to determine a question of law. Can a party enforce a partial arbitral award mid-stream? The dispute calls for this Court to navigate our arbitration statutes. It also requires an audit of conflicting jurisprudence. The scales of justice must weigh the doctrine of minimal Court intervention against the statutory right to enforce an award.
Background Facts
2. The genesis of this dispute traces back to Milimani HCCOMM No. E826 of 2021. That suit was instituted by Wycliffe Afandi Endende against Vishudh Anand and SMIC Kenya Limited. The High Court (Mabeya J.) subsequently referred the matter to arbitration. The reference was grounded on Article 31 of the 2nd Respondent's Articles of Association. A Sole Arbitrator, Mr. Philip K. Murgor SC, was appointed. The arbitral proceedings commenced in earnest.
3. Within the arbitral proceedings, the 3rd Respondent herein, Wycliffe Afandi Endende, acted as the Claimant. SMIC Investments Limited, the Applicant in this matter, was joined as the 3rd Respondent before the Arbitral Tribunal. The Claimant alleged fraud and illegalities. He claimed a direct linkage between the acts of the 1st Respondent and the Applicant.
4. The Applicant filed an application before the Arbitrator dated 5th February, 2024. It sought to be struck out of the arbitral proceedings. It argued that the Statement of Claim disclosed no reasonable cause of action against it. It further averred that it was a stranger to the arbitration clause. It contended that the Tribunal lacked jurisdiction to entertain any claim against it.
5. On 4th July, 2024, the Sole Arbitrator delivered his ruling. He allowed the application. The Arbitrator ruled he had no jurisdiction over the Applicant. He struck out the Applicant from the arbitral proceedings. He further awarded costs of the application and the suit to the Applicant on a full indemnity basis.
6. The Applicant now approaches this Court via an Ex-Parte Chamber Summons. The application is dated 4th November, 2024. It is brought under Section 36 of the Arbitration Act, 1995, and Rule 6 of the Arbitration Rules, 1997. It is supported by an affidavit sworn on 4th November, 2024, by Vishudh Anand, a director of the Applicant.
7. The Application for recognition and enforcement seeks the following prayers:
1. THAT the Partial Award made on 4th July 2024 in favour of the Applicant as against the 3rd Respondent, by the Sole Arbitrator, Mr. Philip K. Murgor SC, MCIArb, in the matter of the Arbitration between Wycliffe Afandi Endende and Vishudh Anand & 3 Others be recognised and enforced as a Decree of this Honourable Court.
2. THAT costs of this application be provided for.
8. The Applicant's grounds are straightforward. It contends that the 4th July, 2024 ruling constitutes an interim award. This is anchored on Section 3(1) of the Arbitration Act. The Applicant argues that the Arbitrator ruled he lacked jurisdiction over it. The decision finally disposed of the claim against the Applicant. The award remains unchallenged. It is therefore ripe for recognition and enforcement.
9. To anchor its case, the Applicant relies on several authorities. These include Lalji Meghji Patel & Co. Limited v Nature Green Holdings Limited [2017] KEHC 7079 (KLR), Shah & another v Greenview Developers Limited [2025] KEHC 1527 (KLR), and Dinesh Construction Limited & another v Aircon Electra Services (Nairobi) Limited [2021] KEHC 6762 (KLR). It further relies on Sapra v Africare Limited [2023] KEHC 2327 (KLR), Mobile Accord Incorporated v Reelforge Systems Limited [2021] KEHC 13314 (KLR), and Kenya Commercial Bank Limited v The County Government of Nairobi [2022] KEHC 66 (KLR).
10. The 3rd Respondent entered appearance through Khaminwa & Khaminwa Advocates on 10th December, 2024. He vehemently opposes the application. He filed a Replying Affidavit sworn on 9th January, 2025. He also filed comprehensive written submissions.
11. The 3rd Respondent’s primary ground of opposition is that the 4th July, 2024 decision was a mere preliminary jurisdictional ruling. He argues it is not a substantive, enforceable award. He states that the main arbitration is still ongoing. The substantive claims remain undetermined. He further contends that enforcing this ruling would prematurely fragment the arbitral process into multiple decrees.
12. The 3rd Respondent argues that the application offends the doctrine of minimal Court intervention. He relies on Section 10 of the Arbitration Act. He further argues that the application is premature and misconceived. He states that the Applicant's claim for costs should be dealt with by the Arbitrator at the conclusion of the proceedings, not prematurely by this Court.
13. The 3rd Respondent relies on Anne Mumbi Hinga v Victoria Njoki Gathara [2009] KECA 466 (KLR) and Nyutu Agrovet Limited v Airtel Networks Kenya Limited;Chartered Institute of Arbitrators-Kenya Branch [2019] KESC 11 (KLR). He also cites Synergy Industrial Credit Ltd v Cape Holdings Ltd [2019] KESC 12 (KLR), National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & another [2001] KECA 362 (KLR), and Mahican Investments Limited, Katmai Investments Limited, Kubadilishana Limited & Gian Carlo Ferrari V Giovanni Gaida & 79 Others & Caluwa Limited [2005] KEHC 1267 (KLR). He urges this Court to dismiss the application with costs.
Issues for Determination
14. The Court has considered the Application, the response, the rival submissions as well as the oral highlights by Counsel for the parties. The Court frames two (2) issues for determination:
( i) Whether the ruling of 4th July, 2024 is an arbitral award capable of recognition and enforcement under Section 36 of the Arbitration Act.
(ii) Whether the Court should grant the orders sought.
Analysis
15. A determination by this Court that the award is enforceable will lead to recognition of the award as a Decree of this Court. Such a Decree would create rights and obligations that can be enforced against the Respondent. To reach such a determination, this Court will have to render its considered opinion on the two (2) issues raised.
(i) Whether the ruling of 4th July, 2024 is an arbitral award capable of recognition and enforcement under Section 36 of the Arbitration Act.
16. Is the ruling of 4th July, 2024 an arbitral award capable of recognition and enforcement? Section 3(1) of the Arbitration Act explicitly defines an "arbitral award". The statute states that it means
" arbitral award" means any award of an arbitral tribunal and includes an interim arbitral award;"
17. The plain reading of the statute recognizes interim awards.
18. A clear conflict exists in our jurisprudence regarding the enforcement of such interim awards. The 3rd Respondent implicitly relies on the strict finality doctrine. He argues that only a final award that disposes of the entire arbitration can be enforced. This position finds historical support in the Court of Appeal.
19. In Kenfit Limited v Consolata Fathers [2015] KECA 630 (KLR), the Court of Appeal severely restricted the enforcement of partial awards. The Court held that a High Court can only enforce a final award. The Court of Appeal as then constituted held as follows:
"We find merit in the reasoning by the learned judge. There can only be one award which finally disposes of the matters referred to the arbitrator... the High Court can only recognise and enforce a final award by an arbitrator if the award does not reserve any matter for consideration by the arbitration or any other person."
20. However, High Court jurisprudence has since evolved. Courts have confronted the statutory reality of Section 3(1). In Dinesh Construction Limited & another v Aircon Electra Services (Nairobi) Limited [2021] KEHC 6762 (KLR), the High Court departed from the Court of Appeal in Kenfit.
21. Justice Majanja in Dinesh boldly declared the Kenfit decision per incuriam. The Court of Appeal had failed to consider the explicit wording of Section 3(1) of the Arbitration Act. The Late Majanja J. reasoned as follows:
"While I accept that I am bound by the decision of the Court of Appeal in Kenfit Limited v Consolata Father (Supra), I hold that the decision was per incuriam as the Court's attention was not drawn to Section 3(1) of the Arbitration Act which states that, 'arbitral award' means any award of an arbitral tribunal and includes an interim arbitral award. This means that any award whether interim or otherwise is an award and may be enforced as it is an award under Section 36(1) of the Arbitration Act."
22. This progressive reasoning was subsequently adopted in Sapra v Africare Limited [2023] KEHC 2327 (KLR). It was also affirmed in Shah & another v Greenview Developers Limited [2025] KEHC 1527 (KLR). The High Court has consistently held that Section 36 does not qualify what kind of award may be enforced.
23. This Court associates itself with the entirely with the reasoning by the late Majanja J in Dinesh and by my namesake BM Musyoki J. in Shah & another. The doctrine of stare decisis must yield when a superior Court's decision is demonstrably per incuriam of an express statutory provision. The Arbitration Act clearly contemplates the existence and enforcement of interim awards. This is also a testament to our Courts which are constantly introspecting as they continue to engage with their own decisions and those of the superior Courts. It reflects on the growth of our jurisprudence especially in commercial law. Always growing always expanding as it is enriched by the able, well researched and robust submissions by Counsel. This is one area of the law where if you snooze you lose.
24. The 3rd Respondent heavily relies on the Supreme Court decision in Nyutu Agrovet Limited v Airtel Networks Kenya Limited;Chartered Institute of Arbitrators-Kenya Branch [2019] KESC 11 (KLR). He argues for minimal Court intervention under Section 10 of the Act. He contends that enforcing this ruling would fragment the arbitration.
25. This Court has considered the Supreme Court's pronouncements in Nyutu Agrovet. The Supreme Court emphasized the principles of party autonomy, finality, and limited judicial intervention.
26. However, the 3rd Respondent misapprehends the application of these principles to the unique facts of this case. A ruling that completely discharges a party from arbitral proceedings brings absolute finality to that specific party. Vis-à-vis the Applicant, the arbitration is not fragmented. It is concluded. The Applicant is no longer a party to the Arbitral proceedings. The Respondent submits that the Applicant is still being referred to in those proceedings. That may be so, but it is no longer a party. Even if it was to appear as a witness, it would just be a witness and neither a Claimant nor a Respondent.
27. The Arbitrator ruled that he lacked jurisdiction over the Applicant. He struck the Applicant from the proceedings. He awarded costs. Those costs crystalized upon the delivery of the ruling. The Applicant is no longer a participant in the ongoing arbitration between the Claimant and the 1st and 2nd Respondents.
28. To fortify this position, this Court refers to Geo Chem Middle East v Kenya Bureau of Standards [2020] KESC 1 (KLR). The Supreme Court elaborated on the nature of an award as follows:
"An award is the final outcome of an arbitration and when it is confirmed, varied, set aside, or remitted to the arbitral tribunal for re-consideration... The very reason why parties conclude an arbitration agreement is because they do not wish to litigate in the courts."
29. Furthermore, in Kimaryo v First Riverside Acres Limited & another [2022] eKLR, the Court reiterated that the Arbitration Act does not foreclose the issuance of interim awards. The Court noted that an arbitral tribunal can issue partial awards to resolve specific issues. These can be enforced while broader proceedings continue against remaining parties.
30. Enforcing a final cost award for an extricated party does not violate Section 10 of the Arbitration Act. Rather, it supports the efficiency of the arbitral process. The Applicant should not be held hostage to ongoing proceedings in which it has no legal interest. It should not be forced to wait for a final award between other parties to recover its costs.
31. Section 36 of the Arbitration Act mandates the recognition and enforcement of domestic arbitral awards. This is subject only to the grounds of refusal set out in Section 37. The burden of proving a ground for refusal lies squarely on the party opposing enforcement.
32. The 3rd Respondent has not pleaded or proven any of the strict statutory grounds under Section 37 of the Arbitration Act. He does not allege incapacity, invalidity of the arbitration agreement, lack of notice, or violation of public policy.
33. The 3rd Respondent's sole argument is that enforcement is "premature". This is not a recognized statutory ground to deny a successful party the fruits of its award. Absent proof of the grounds under Section 37, this Court is bound by Section 36(1) to recognize and enforce the award.
(ii) Whether the Court should grant the orders sought.
34. The Applicant has fully complied with the formal requirements of Section 36(3) which states:
(3) Unless the High Court otherwise orders, the party relying on an arbitral award or applying for its
enforcement must 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
35. It has furnished the Court with the original arbitral award. The in exercise of its discretion under Section 36(3) dispenses with the production of an arbitration agreement between the Applicant and the Respondent. The reason for the striking out of the Applicant from the Arbitral process was precisely that there was no arbitration agreement between the two parties. This Court cannot then turn around and demand for the very same document said not to exist. Such a demand would be absurd. In any event the Court is satisfied that it has seen the Ruling that referred this matter to arbitration at the initial stages. The application is substantively and procedurally sound.
36. This Court finds that the ruling of 4th July, 2024 constitutes an interim arbitral award within the meaning of Section 3(1) of the Arbitration Act. It finally disposed of the claims against the Applicant. It is capable of recognition and enforcement. The application dated 4th November, 2024 is merited.
37. As to costs, the same ordinarily follow the event and lie at the discretion of this Court. There are no valid reasons advanced as to why the successful Applicant ought to be denied costs of the application. The same are assessed at Kshs. 50,000/=.
Determination
38. In the final analysis, the Court makes the following orders in relation to the Applicant’s application by way of an Ex parte Chamber Summons dated 4th November, 2024:
1. THAT the Partial Award made on 4th July, 2024 in favour of the Applicant as against the 3rd Respondent, by the Sole Arbitrator, Mr. Philip K. Murgor SC, MCIArb, in the matter of the Arbitration between Wycliffe Afandi Endende and Vishudh Anand & 3 Others is HEREBY recognised and enforced as a Decree of this Honourable Court
2. THAT costs of this application are HEREBY awarded to the Applicant assessed at Kshs. 50,000/=.
39. It is so ordered.
DATED, SIGNED AND DELIVERED AT MILIMANI THIS 14TH DAY OF SEPTEMBER, 2026
NJOROGE BENJAMIN K.
JUDGE
In the presence of:
Miss Ochieng for the Applicant.
Mr. Nyambuti for Dr. Khaminwa for the Respondent.
Mr. John Paul - Court Assistant.
Background Facts
2. The genesis of this dispute traces back to Milimani HCCOMM No. E826 of 2021. That suit was instituted by Wycliffe Afandi Endende against Vishudh Anand and SMIC Kenya Limited. The High Court (Mabeya J.) subsequently referred the matter to arbitration. The reference was grounded on Article 31 of the 2nd Respondent's Articles of Association. A Sole Arbitrator, Mr. Philip K. Murgor SC, was appointed. The arbitral proceedings commenced in earnest.
3. Within the arbitral proceedings, the 3rd Respondent herein, Wycliffe Afandi Endende, acted as the Claimant. SMIC Investments Limited, the Applicant in this matter, was joined as the 3rd Respondent before the Arbitral Tribunal. The Claimant alleged fraud and illegalities. He claimed a direct linkage between the acts of the 1st Respondent and the Applicant.
4. The Applicant filed an application before the Arbitrator dated 5th February, 2024. It sought to be struck out of the arbitral proceedings. It argued that the Statement of Claim disclosed no reasonable cause of action against it. It further averred that it was a stranger to the arbitration clause. It contended that the Tribunal lacked jurisdiction to entertain any claim against it.
5. On 4th July, 2024, the Sole Arbitrator delivered his ruling. He allowed the application. The Arbitrator ruled he had no jurisdiction over the Applicant. He struck out the Applicant from the arbitral proceedings. He further awarded costs of the application and the suit to the Applicant on a full indemnity basis.
6. The Applicant now approaches this Court via an Ex-Parte Chamber Summons. The application is dated 4th November, 2024. It is brought under Section 36 of the Arbitration Act, 1995, and Rule 6 of the Arbitration Rules, 1997. It is supported by an affidavit sworn on 4th November, 2024, by Vishudh Anand, a director of the Applicant.
7. The Application for recognition and enforcement seeks the following prayers:
1. THAT the Partial Award made on 4th July 2024 in favour of the Applicant as against the 3rd Respondent, by the Sole Arbitrator, Mr. Philip K. Murgor SC, MCIArb, in the matter of the Arbitration between Wycliffe Afandi Endende and Vishudh Anand & 3 Others be recognised and enforced as a Decree of this Honourable Court.
2. THAT costs of this application be provided for.
8. The Applicant's grounds are straightforward. It contends that the 4th July, 2024 ruling constitutes an interim award. This is anchored on Section 3(1) of the Arbitration Act. The Applicant argues that the Arbitrator ruled he lacked jurisdiction over it. The decision finally disposed of the claim against the Applicant. The award remains unchallenged. It is therefore ripe for recognition and enforcement.
9. To anchor its case, the Applicant relies on several authorities. These include Lalji Meghji Patel & Co. Limited v Nature Green Holdings Limited [2017] KEHC 7079 (KLR), Shah & another v Greenview Developers Limited [2025] KEHC 1527 (KLR), and Dinesh Construction Limited & another v Aircon Electra Services (Nairobi) Limited [2021] KEHC 6762 (KLR). It further relies on Sapra v Africare Limited [2023] KEHC 2327 (KLR), Mobile Accord Incorporated v Reelforge Systems Limited [2021] KEHC 13314 (KLR), and Kenya Commercial Bank Limited v The County Government of Nairobi [2022] KEHC 66 (KLR).
10. The 3rd Respondent entered appearance through Khaminwa & Khaminwa Advocates on 10th December, 2024. He vehemently opposes the application. He filed a Replying Affidavit sworn on 9th January, 2025. He also filed comprehensive written submissions.
11. The 3rd Respondent’s primary ground of opposition is that the 4th July, 2024 decision was a mere preliminary jurisdictional ruling. He argues it is not a substantive, enforceable award. He states that the main arbitration is still ongoing. The substantive claims remain undetermined. He further contends that enforcing this ruling would prematurely fragment the arbitral process into multiple decrees.
12. The 3rd Respondent argues that the application offends the doctrine of minimal Court intervention. He relies on Section 10 of the Arbitration Act. He further argues that the application is premature and misconceived. He states that the Applicant's claim for costs should be dealt with by the Arbitrator at the conclusion of the proceedings, not prematurely by this Court.
13. The 3rd Respondent relies on Anne Mumbi Hinga v Victoria Njoki Gathara [2009] KECA 466 (KLR) and Nyutu Agrovet Limited v Airtel Networks Kenya Limited;Chartered Institute of Arbitrators-Kenya Branch [2019] KESC 11 (KLR). He also cites Synergy Industrial Credit Ltd v Cape Holdings Ltd [2019] KESC 12 (KLR), National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & another [2001] KECA 362 (KLR), and Mahican Investments Limited, Katmai Investments Limited, Kubadilishana Limited & Gian Carlo Ferrari V Giovanni Gaida & 79 Others & Caluwa Limited [2005] KEHC 1267 (KLR). He urges this Court to dismiss the application with costs.
Issues for Determination
14. The Court has considered the Application, the response, the rival submissions as well as the oral highlights by Counsel for the parties. The Court frames two (2) issues for determination:
( i) Whether the ruling of 4th July, 2024 is an arbitral award capable of recognition and enforcement under Section 36 of the Arbitration Act.
(ii) Whether the Court should grant the orders sought.
Analysis
15. A determination by this Court that the award is enforceable will lead to recognition of the award as a Decree of this Court. Such a Decree would create rights and obligations that can be enforced against the Respondent. To reach such a determination, this Court will have to render its considered opinion on the two (2) issues raised.
(i) Whether the ruling of 4th July, 2024 is an arbitral award capable of recognition and enforcement under Section 36 of the Arbitration Act.
16. Is the ruling of 4th July, 2024 an arbitral award capable of recognition and enforcement? Section 3(1) of the Arbitration Act explicitly defines an "arbitral award". The statute states that it means
" arbitral award" means any award of an arbitral tribunal and includes an interim arbitral award;"
17. The plain reading of the statute recognizes interim awards.
18. A clear conflict exists in our jurisprudence regarding the enforcement of such interim awards. The 3rd Respondent implicitly relies on the strict finality doctrine. He argues that only a final award that disposes of the entire arbitration can be enforced. This position finds historical support in the Court of Appeal.
19. In Kenfit Limited v Consolata Fathers [2015] KECA 630 (KLR), the Court of Appeal severely restricted the enforcement of partial awards. The Court held that a High Court can only enforce a final award. The Court of Appeal as then constituted held as follows:
"We find merit in the reasoning by the learned judge. There can only be one award which finally disposes of the matters referred to the arbitrator... the High Court can only recognise and enforce a final award by an arbitrator if the award does not reserve any matter for consideration by the arbitration or any other person."
20. However, High Court jurisprudence has since evolved. Courts have confronted the statutory reality of Section 3(1). In Dinesh Construction Limited & another v Aircon Electra Services (Nairobi) Limited [2021] KEHC 6762 (KLR), the High Court departed from the Court of Appeal in Kenfit.
21. Justice Majanja in Dinesh boldly declared the Kenfit decision per incuriam. The Court of Appeal had failed to consider the explicit wording of Section 3(1) of the Arbitration Act. The Late Majanja J. reasoned as follows:
"While I accept that I am bound by the decision of the Court of Appeal in Kenfit Limited v Consolata Father (Supra), I hold that the decision was per incuriam as the Court's attention was not drawn to Section 3(1) of the Arbitration Act which states that, 'arbitral award' means any award of an arbitral tribunal and includes an interim arbitral award. This means that any award whether interim or otherwise is an award and may be enforced as it is an award under Section 36(1) of the Arbitration Act."
22. This progressive reasoning was subsequently adopted in Sapra v Africare Limited [2023] KEHC 2327 (KLR). It was also affirmed in Shah & another v Greenview Developers Limited [2025] KEHC 1527 (KLR). The High Court has consistently held that Section 36 does not qualify what kind of award may be enforced.
23. This Court associates itself with the entirely with the reasoning by the late Majanja J in Dinesh and by my namesake BM Musyoki J. in Shah & another. The doctrine of stare decisis must yield when a superior Court's decision is demonstrably per incuriam of an express statutory provision. The Arbitration Act clearly contemplates the existence and enforcement of interim awards. This is also a testament to our Courts which are constantly introspecting as they continue to engage with their own decisions and those of the superior Courts. It reflects on the growth of our jurisprudence especially in commercial law. Always growing always expanding as it is enriched by the able, well researched and robust submissions by Counsel. This is one area of the law where if you snooze you lose.
24. The 3rd Respondent heavily relies on the Supreme Court decision in Nyutu Agrovet Limited v Airtel Networks Kenya Limited;Chartered Institute of Arbitrators-Kenya Branch [2019] KESC 11 (KLR). He argues for minimal Court intervention under Section 10 of the Act. He contends that enforcing this ruling would fragment the arbitration.
25. This Court has considered the Supreme Court's pronouncements in Nyutu Agrovet. The Supreme Court emphasized the principles of party autonomy, finality, and limited judicial intervention.
26. However, the 3rd Respondent misapprehends the application of these principles to the unique facts of this case. A ruling that completely discharges a party from arbitral proceedings brings absolute finality to that specific party. Vis-à-vis the Applicant, the arbitration is not fragmented. It is concluded. The Applicant is no longer a party to the Arbitral proceedings. The Respondent submits that the Applicant is still being referred to in those proceedings. That may be so, but it is no longer a party. Even if it was to appear as a witness, it would just be a witness and neither a Claimant nor a Respondent.
27. The Arbitrator ruled that he lacked jurisdiction over the Applicant. He struck the Applicant from the proceedings. He awarded costs. Those costs crystalized upon the delivery of the ruling. The Applicant is no longer a participant in the ongoing arbitration between the Claimant and the 1st and 2nd Respondents.
28. To fortify this position, this Court refers to Geo Chem Middle East v Kenya Bureau of Standards [2020] KESC 1 (KLR). The Supreme Court elaborated on the nature of an award as follows:
"An award is the final outcome of an arbitration and when it is confirmed, varied, set aside, or remitted to the arbitral tribunal for re-consideration... The very reason why parties conclude an arbitration agreement is because they do not wish to litigate in the courts."
29. Furthermore, in Kimaryo v First Riverside Acres Limited & another [2022] eKLR, the Court reiterated that the Arbitration Act does not foreclose the issuance of interim awards. The Court noted that an arbitral tribunal can issue partial awards to resolve specific issues. These can be enforced while broader proceedings continue against remaining parties.
30. Enforcing a final cost award for an extricated party does not violate Section 10 of the Arbitration Act. Rather, it supports the efficiency of the arbitral process. The Applicant should not be held hostage to ongoing proceedings in which it has no legal interest. It should not be forced to wait for a final award between other parties to recover its costs.
31. Section 36 of the Arbitration Act mandates the recognition and enforcement of domestic arbitral awards. This is subject only to the grounds of refusal set out in Section 37. The burden of proving a ground for refusal lies squarely on the party opposing enforcement.
32. The 3rd Respondent has not pleaded or proven any of the strict statutory grounds under Section 37 of the Arbitration Act. He does not allege incapacity, invalidity of the arbitration agreement, lack of notice, or violation of public policy.
33. The 3rd Respondent's sole argument is that enforcement is "premature". This is not a recognized statutory ground to deny a successful party the fruits of its award. Absent proof of the grounds under Section 37, this Court is bound by Section 36(1) to recognize and enforce the award.
(ii) Whether the Court should grant the orders sought.
34. The Applicant has fully complied with the formal requirements of Section 36(3) which states:
(3) Unless the High Court otherwise orders, the party relying on an arbitral award or applying for its
enforcement must 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
35. It has furnished the Court with the original arbitral award. The in exercise of its discretion under Section 36(3) dispenses with the production of an arbitration agreement between the Applicant and the Respondent. The reason for the striking out of the Applicant from the Arbitral process was precisely that there was no arbitration agreement between the two parties. This Court cannot then turn around and demand for the very same document said not to exist. Such a demand would be absurd. In any event the Court is satisfied that it has seen the Ruling that referred this matter to arbitration at the initial stages. The application is substantively and procedurally sound.
36. This Court finds that the ruling of 4th July, 2024 constitutes an interim arbitral award within the meaning of Section 3(1) of the Arbitration Act. It finally disposed of the claims against the Applicant. It is capable of recognition and enforcement. The application dated 4th November, 2024 is merited.
37. As to costs, the same ordinarily follow the event and lie at the discretion of this Court. There are no valid reasons advanced as to why the successful Applicant ought to be denied costs of the application. The same are assessed at Kshs. 50,000/=.
Determination
38. In the final analysis, the Court makes the following orders in relation to the Applicant’s application by way of an Ex parte Chamber Summons dated 4th November, 2024:
1. THAT the Partial Award made on 4th July, 2024 in favour of the Applicant as against the 3rd Respondent, by the Sole Arbitrator, Mr. Philip K. Murgor SC, MCIArb, in the matter of the Arbitration between Wycliffe Afandi Endende and Vishudh Anand & 3 Others is HEREBY recognised and enforced as a Decree of this Honourable Court
2. THAT costs of this application are HEREBY awarded to the Applicant assessed at Kshs. 50,000/=.
39. It is so ordered.
DATED, SIGNED AND DELIVERED AT MILIMANI THIS 14TH DAY OF SEPTEMBER, 2026
NJOROGE BENJAMIN K.
JUDGE
In the presence of:
Miss Ochieng for the Applicant.
Mr. Nyambuti for Dr. Khaminwa for the Respondent.
Mr. John Paul - Court Assistant.