INTRODUCTION AND BACKGROUND
1. The Applicant filed the Chamber Summons dated 21 st July 2025 against the Respondent pursuant to Rules 4(2) and 9 of the Arbitration Rules, 1997 and the applicable provisions of the Arbitration Act, 1995. The Application principally seeks the recognition, adoption and enforcement of an Award on Quantum of Costs dated 5 th December 2024, made by the sole arbitrator, Martin Munyu, FCIArb, in the sum of KES 4,777,049.00, arising from the arbitration between the parties as well as costs.
2. The Application is supported by the Affidavit of Effie Mutio, an Advocate of the High Court and Corporate Affairs Officer of the Applicant. She deposes that she is conversant with the arbitration proceedings and is duly authorised to swear the affidavit on behalf of the Applicant.
3. She reiterates the history of the parties' Joint Development Agreement and subsequent Exit Agreement, the reference of the dispute to arbitration and the Final Award of 18 th April 2024. She states that the Final Award awarded the Applicant EUR 278,673.40 together with interest and recoverable costs, with the quantum of those costs to be agreed or assessed subsequently.
4. She explains that the parties failed to agree on costs, resulting in the filing of the Bill of Costs dated 18 th October 2024. The arbitrator considered the parties' respective positions and published the Award on Costs on 5 th December 2024, awarding the Applicant KES 4,777,049.00. She further states that the Award was released upon payment of the arbitrator's fees.
5. The deponent confirms that the Final Award had already been recognised and adopted by this Court on 21 st January 2025 and that the resultant decree was issued on 11 th May 2025. She states that the decree omitted the assessed party-to-party costs.
6. The Applicant thereafter wrote to the Deputy Registrar seeking rectification of the decree under Section 99 of the Civil Procedure Act, but the request was declined because the Award on Costs had not been adopted by the Court.
7. The Applicant therefore maintains that a separate application for recognition and enforcement became necessary. It is further deposed that the Respondent has failed to honour the Award on Costs, thereby prejudicing the Applicant and depriving it of the fruits of the arbitration. The Applicant consequently asks that the Award on Costs be recognised as binding and enforceable as a decree of the Court.
8. The Respondent filed its Grounds of Opposition in which they contend that the Final Award dated 18 th April 2024 was already recognised and adopted on 21 st January 2025; that the Award on Costs does not constitute an independent award capable of separate enforcement; that the present Application amounts to splitting enforcement proceedings; that any omission from the decree should be corrected under Section 99 of the Civil Procedure Act; and that the Court lacks jurisdiction to entertain a second enforcement application arising from the same arbitral process.
APPLICANT'S SUBMISSIONS
9. The Applicant submits that the Award on Quantum of Costs is a separate arbitral award capable of recognition and enforcement under Sections 3 and 36 of the Arbitration Act. Section 3(1) defines an arbitral award as “any award of an arbitral tribunal and includes an interim arbitral award.” The Applicant argues that Section 36 does not restrict recognition and enforcement to final awards only.
10. On res judicata, the Applicant submits that the Award on Quantum of Costs had not been presented before or adjudicated upon by this Court when the Final Award was adopted on 21 st January 2025. It therefore argues that the present application does not concern a matter which had previously been directly and substantially determined by the Court.
11. On functus officio, the Applicant relies on Raila Odinga v IEBC & 3 Others, Petition No. 5 of 2013 , submitting that the doctrine prevents a decision-maker from reopening the same matter after a final decision, but that the present matter concerns an Award on Quantum of Costs which had not previously been presented for recognition or enforcement before this Court.
12. The Applicant further relies on Mahindra & Mahindra South Africa (PTY) Ltd (Kenya Branch) v Yash Commodities Limited & 2 Others [2025] KEHC 16499 (KLR), where the High Court recognised a Final Award, Additional Award and Award on Quantum of Costs arising from the same arbitral proceedings. It also relies on Ujenzi Bora Investment Limited v Africa Forest Lodges Limited [2022] KEHC 12270 (KLR) and Kimaryo v First Riverside Acres Limited & Another [2022] KEHC 299 (KLR) in support of the proposition that an award dealing with costs after the substantive award may independently be recognised and enforced.
13. On the statutory threshold, the Applicant submits that it has furnished the arbitration agreement and certified copy of the Award as required under Section 36(3), and that the Respondent has not demonstrated any of the grounds under Section 37 for refusing recognition and enforcement.
14. On costs, the Applicant relies on Section 27 of the Civil Procedure Act and Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai Estate & 4 Others [2014] eKL R, submitting that costs ordinarily follow the event. It therefore asks that the Application be allowed with costs to the Applicant.
RESPONDENT'S SUBMISSIONS
15. The Respondent submits that the Final Award of 18 th April 2024 already determined the Applicant's entitlement to recoverable costs and merely reserved the quantum for later assessment. Its position is therefore that the Award on Quantum of Costs did not create a new substantive entitlement but merely quantified an entitlement which had already formed part of the Final Award.
16. The Respondent argues that when the Final Award was recognised and adopted on 21 st January 2025, the Court recognised the entire Award, including the Applicant's entitlement to costs. It distinguishes Mahindra & Mahindra on the basis that in that case the Final Award, Additional Award and Award on Quantum of Costs were all presented to the Court together and recognised in one ruling.
17. On res judicata, the Respondent relies on Section 7 of the Civil Procedure Act and John Florence Maritime Services Limited & Another v Cabinet Secretary, Transport & Infrastructure & 3 Others [2021] KESC 39 (KLR) . It argues that the Applicant ought to have brought forward the costs issue as part of its original enforcement proceedings rather than seeking enforcement in instalments.
18. On functus officio, the Respondent relies on Telkom Kenya Limited v John Ochanda [2014] KECA 600 (KLR) and submits that once the Court had recognised the Final Award and the decree had been issued, it could not engage in a fresh merits-based recognition exercise arising from the same arbitral reference.
19. The Respondent further submits that the Applicant's complaint is, in substance, that the decree of 11 th May 2025 omitted the assessed costs. Such an omission, it argues, is properly addressed under Section 99 of the Civil Procedure Act, which permits correction of clerical or arithmetical mistakes and errors arising from accidental slips or omissions. The Respondent therefore urges dismissal of the Application and submits that any correction of the decree should be pursued under Section 99.
ISSUES FOR DETERMINATION
20. Having considered the Chamber Summons dated 21 st July 2025, the Supporting Affidavit, the Respondent's Grounds of Opposition and the parties' respective submissions, I find the following to be the issues for determination:
i. Whether the Award on Quantum of Costs dated 5 th December 2024 is capable of separate recognition and enforcement under Section 36 of the Arbitration Act.
ii. Whether the present Application is barred by the doctrines of res judicata and functus officio.
iii. Whether the Applicant's remedy lies in rectification of the decree under Section 99 of the Civil Procedure Act, or in separate recognition and enforcement of the Award on Quantum of Costs.
ANALYSIS AND DETERMINATION
21. The principal issue for determination is whether the Award on Quantum of Costs dated 5 th December 2024 is capable of separate recognition and enforcement notwithstanding that the Final Award dated 18 th April 2024 had already been recognised and adopted by this Court on 21 st January 2025.
22. Section 36(1) of the Arbitration Act provides that a domestic arbitral award shall, upon application, be recognised as binding and enforced by the High Court.
23. Section 3(1) defines an arbitral award as
“any award of an arbitral tribunal and includes an interim arbitral award.”
24. The provision therefore does not restrict enforcement to an award which finally determines all matters arising from the reference.
25. This position was expressly affirmed in Kimaryo v First Riverside Acres Limited & another [2022] KEHC 299 (KLR) , where the Court stated 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.”
26. The facts in Kimaryo (supra) are particularly instructive. The initial award had already been recognised and entered as a judgment of the Court. The Arbitrator had, however, reserved the issue of costs for subsequent determination. A subsequent Additional Award on Costs was thereafter published, and the Court separately recognised and enforced it. In rejecting the argument that the Arbitrator had become functus officio , the Court held:
“ Since the issue of costs was reserved, the issue of Arbitrator being functus officio does not arise.”
27. The Court further found that the subsequent award merely quantified the costs already awarded and ultimately ordered that the Additional Award on Costs be recognised and entered as a judgment of the Court and leave granted to enforce it.
28. The circumstances before this Court are substantially similar. The Final Award of 18 th April 2024 awarded the Applicant recoverable costs but expressly left their quantum to be agreed or assessed subsequently. The parties did not agree, resulting in the Bill of Costs and, ultimately, the Award on Quantum of Costs dated 5 th December 2024. The subsequent award therefore did not reopen or vary the Final Award; it quantified an entitlement which had expressly been reserved for later determination.
29. The same approach was adopted in Ujenzi Bora Investment Limited v Africa Forest Lodges Limited [2022] KEHC 12270 (KLR ) , where the Court separately considered an Additional Arbitral Award on costs and, finding no basis for refusal under Section 37 of the Arbitration Act, recognised and adopted the award and granted leave to enforce it as an order of the Court.
30. I therefore find that the Award on Quantum of Costs is an arbitral award capable of recognition and enforcement under Section 36 of the Arbitration Act.
31. On the second issue, the Respondent contends that the present Application is barred by the doctrines of res judicata and functus officio , on the basis that the Final Award dated 18 th April 2024 had already been recognised and adopted by this Court on 21 st January 2025 and a decree issued thereafter. I find these objections unmerited.
32. Section 7 of the Civil Procedure Act embodies the doctrine of res judicata . In John Florence Maritime Services Limited & another v Cabinet Secretary, Transport & Infrastructure & 3 others [2021] KESC 39 (KLR) , the Supreme Court explained that the doctrine is founded on the principle of finality and prevents multiplicity of litigation. The Court stated:
“For res judicata to be invoked in a civil matter the following elements must be demonstrated:
(a) There is a former Judgment or order which was final;
(b) The Judgment or order was on merit;
(c) The Judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; and
(d) There must be between the first and the second action identical parties, subject matter and cause of action.”
33. In the present case, although the Final Award dated 18 th April 2024 was recognised and adopted by this Court on 21 st January 2025, the present Application concerns the Award on Quantum of Costs dated 5 th December 2024, which had not been presented to or determined by the Court in the earlier proceedings. The Final Award had awarded recoverable costs but left their quantum to be agreed or assessed subsequently. The sum of KES 4,777,049.00 was therefore not the subject of the Court's earlier determination.
34. The present Application consequently does not seek to reopen or re-litigate the matters determined by the Court on 21 st January 2025. Rather, it seeks recognition and enforcement of a subsequent arbitral award arising from an issue which had expressly been reserved for subsequent determination. The requirement of identity of subject matter and cause of action necessary to sustain a plea of res judicata has therefore not been established.
35. As regards functus officio, the Respondent argues that upon recognition and adoption of the Final Award and issuance of the resultant decree, this Court became incapable of entertaining any further application arising from the same arbitral proceedings.
36. The doctrine gives effect to the finality of judicial decisions. In Kenya Broadcasting Corporation v Geoffrey Wakio [2019] KECA 65 (KLR) , the Court of Appeal stated:
“To sum up, a court is functus when the proceedings are fully concluded and the judgment or order has been perfected. This, however, does not foreclose proceedings which are incidental to or natural consequence of the final decision of the court including any other matter on which the court could exercise supplemental jurisdiction. Therefore, in determining whether the court is functus officio one should look at the order or relief which is being sought in the case despite that judgment has already been rendered by the court.”
37. Applying that principle, the present Application does not invite this Court to review, vary or reopen its decision of 21 st January 2025. Instead, it seeks recognition and enforcement of the subsequent Award on Quantum of Costs dated 5 th December 2024, which had not itself been presented to the Court for recognition.
38. The relief now sought is therefore distinct from the relief previously granted. Recognition of the subsequent award would not require the Court to reconsider the merits of the Final Award or disturb the decree arising therefrom. Rather, the Court is being asked to exercise its statutory jurisdiction under Section 36 of the Arbitration Act in respect of a subsequent arbitral award.
39. I therefore find that neither res judicata nor functus officio bars the present Application.
40. On the third issue, Section 99 permits correction of “clerical or arithmetical mistakes in judgments, decrees or orders, or errors arising therein from any accidental slip or omission.” It is therefore directed at correcting a decree so that it accurately reflects what the Court has already determined.
41. That is not the situation here. At the time the decree on the Initial Award was issued, this Court had not recognised or adopted the Award on Quantum of Costs dated 5 th December 2024. The Applicant is consequently not seeking correction of a clerical error in a decree which already incorporated the costs award. It is seeking the statutory recognition and enforcement of a subsequent arbitral award.
42. This distinction is supported by Attorney General & another v MA Consulting Group Limited [2023] KEHC 1988 (KLR) , where the Court recognised the limited role of Section 99 in correcting errors in a decree and cautioned that such correction “must not touch on the arbitral award on costs.”
43. Accordingly, Section 99 cannot properly be invoked to substitute the recognition and enforcement procedure prescribed under Section 36 of the Arbitration Act for an arbitral award which had not previously been adopted by the Court.
DISPOSITION
44. Accordingly, the Chamber Summons dated 21 st July 2025 is hereby allowed and I make the following orders:
i. The Award on Quantum of Costs dated 5 th December 2024, in the sum of KES 4,777,049.00, is hereby recognised and adopted as a judgment of this Court, and the Applicant is granted leave to enforce the same as a decree of this Court.
ii. Costs shall be borne by the Respondent.
It is so ordered.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 17 th DAY OF SEPTEMBER 2026.
MURUNGA, J
Delivered on virtual platform in the presence of:
Ms Mwaura instructed by Ashitiva & Co. for the Applicant
Kevin Babu - Court Assistant
1. The Applicant filed the Chamber Summons dated 21 st July 2025 against the Respondent pursuant to Rules 4(2) and 9 of the Arbitration Rules, 1997 and the applicable provisions of the Arbitration Act, 1995. The Application principally seeks the recognition, adoption and enforcement of an Award on Quantum of Costs dated 5 th December 2024, made by the sole arbitrator, Martin Munyu, FCIArb, in the sum of KES 4,777,049.00, arising from the arbitration between the parties as well as costs.
2. The Application is supported by the Affidavit of Effie Mutio, an Advocate of the High Court and Corporate Affairs Officer of the Applicant. She deposes that she is conversant with the arbitration proceedings and is duly authorised to swear the affidavit on behalf of the Applicant.
3. She reiterates the history of the parties' Joint Development Agreement and subsequent Exit Agreement, the reference of the dispute to arbitration and the Final Award of 18 th April 2024. She states that the Final Award awarded the Applicant EUR 278,673.40 together with interest and recoverable costs, with the quantum of those costs to be agreed or assessed subsequently.
4. She explains that the parties failed to agree on costs, resulting in the filing of the Bill of Costs dated 18 th October 2024. The arbitrator considered the parties' respective positions and published the Award on Costs on 5 th December 2024, awarding the Applicant KES 4,777,049.00. She further states that the Award was released upon payment of the arbitrator's fees.
5. The deponent confirms that the Final Award had already been recognised and adopted by this Court on 21 st January 2025 and that the resultant decree was issued on 11 th May 2025. She states that the decree omitted the assessed party-to-party costs.
6. The Applicant thereafter wrote to the Deputy Registrar seeking rectification of the decree under Section 99 of the Civil Procedure Act, but the request was declined because the Award on Costs had not been adopted by the Court.
7. The Applicant therefore maintains that a separate application for recognition and enforcement became necessary. It is further deposed that the Respondent has failed to honour the Award on Costs, thereby prejudicing the Applicant and depriving it of the fruits of the arbitration. The Applicant consequently asks that the Award on Costs be recognised as binding and enforceable as a decree of the Court.
8. The Respondent filed its Grounds of Opposition in which they contend that the Final Award dated 18 th April 2024 was already recognised and adopted on 21 st January 2025; that the Award on Costs does not constitute an independent award capable of separate enforcement; that the present Application amounts to splitting enforcement proceedings; that any omission from the decree should be corrected under Section 99 of the Civil Procedure Act; and that the Court lacks jurisdiction to entertain a second enforcement application arising from the same arbitral process.
APPLICANT'S SUBMISSIONS
9. The Applicant submits that the Award on Quantum of Costs is a separate arbitral award capable of recognition and enforcement under Sections 3 and 36 of the Arbitration Act. Section 3(1) defines an arbitral award as “any award of an arbitral tribunal and includes an interim arbitral award.” The Applicant argues that Section 36 does not restrict recognition and enforcement to final awards only.
10. On res judicata, the Applicant submits that the Award on Quantum of Costs had not been presented before or adjudicated upon by this Court when the Final Award was adopted on 21 st January 2025. It therefore argues that the present application does not concern a matter which had previously been directly and substantially determined by the Court.
11. On functus officio, the Applicant relies on Raila Odinga v IEBC & 3 Others, Petition No. 5 of 2013 , submitting that the doctrine prevents a decision-maker from reopening the same matter after a final decision, but that the present matter concerns an Award on Quantum of Costs which had not previously been presented for recognition or enforcement before this Court.
12. The Applicant further relies on Mahindra & Mahindra South Africa (PTY) Ltd (Kenya Branch) v Yash Commodities Limited & 2 Others [2025] KEHC 16499 (KLR), where the High Court recognised a Final Award, Additional Award and Award on Quantum of Costs arising from the same arbitral proceedings. It also relies on Ujenzi Bora Investment Limited v Africa Forest Lodges Limited [2022] KEHC 12270 (KLR) and Kimaryo v First Riverside Acres Limited & Another [2022] KEHC 299 (KLR) in support of the proposition that an award dealing with costs after the substantive award may independently be recognised and enforced.
13. On the statutory threshold, the Applicant submits that it has furnished the arbitration agreement and certified copy of the Award as required under Section 36(3), and that the Respondent has not demonstrated any of the grounds under Section 37 for refusing recognition and enforcement.
14. On costs, the Applicant relies on Section 27 of the Civil Procedure Act and Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai Estate & 4 Others [2014] eKL R, submitting that costs ordinarily follow the event. It therefore asks that the Application be allowed with costs to the Applicant.
RESPONDENT'S SUBMISSIONS
15. The Respondent submits that the Final Award of 18 th April 2024 already determined the Applicant's entitlement to recoverable costs and merely reserved the quantum for later assessment. Its position is therefore that the Award on Quantum of Costs did not create a new substantive entitlement but merely quantified an entitlement which had already formed part of the Final Award.
16. The Respondent argues that when the Final Award was recognised and adopted on 21 st January 2025, the Court recognised the entire Award, including the Applicant's entitlement to costs. It distinguishes Mahindra & Mahindra on the basis that in that case the Final Award, Additional Award and Award on Quantum of Costs were all presented to the Court together and recognised in one ruling.
17. On res judicata, the Respondent relies on Section 7 of the Civil Procedure Act and John Florence Maritime Services Limited & Another v Cabinet Secretary, Transport & Infrastructure & 3 Others [2021] KESC 39 (KLR) . It argues that the Applicant ought to have brought forward the costs issue as part of its original enforcement proceedings rather than seeking enforcement in instalments.
18. On functus officio, the Respondent relies on Telkom Kenya Limited v John Ochanda [2014] KECA 600 (KLR) and submits that once the Court had recognised the Final Award and the decree had been issued, it could not engage in a fresh merits-based recognition exercise arising from the same arbitral reference.
19. The Respondent further submits that the Applicant's complaint is, in substance, that the decree of 11 th May 2025 omitted the assessed costs. Such an omission, it argues, is properly addressed under Section 99 of the Civil Procedure Act, which permits correction of clerical or arithmetical mistakes and errors arising from accidental slips or omissions. The Respondent therefore urges dismissal of the Application and submits that any correction of the decree should be pursued under Section 99.
ISSUES FOR DETERMINATION
20. Having considered the Chamber Summons dated 21 st July 2025, the Supporting Affidavit, the Respondent's Grounds of Opposition and the parties' respective submissions, I find the following to be the issues for determination:
i. Whether the Award on Quantum of Costs dated 5 th December 2024 is capable of separate recognition and enforcement under Section 36 of the Arbitration Act.
ii. Whether the present Application is barred by the doctrines of res judicata and functus officio.
iii. Whether the Applicant's remedy lies in rectification of the decree under Section 99 of the Civil Procedure Act, or in separate recognition and enforcement of the Award on Quantum of Costs.
ANALYSIS AND DETERMINATION
21. The principal issue for determination is whether the Award on Quantum of Costs dated 5 th December 2024 is capable of separate recognition and enforcement notwithstanding that the Final Award dated 18 th April 2024 had already been recognised and adopted by this Court on 21 st January 2025.
22. Section 36(1) of the Arbitration Act provides that a domestic arbitral award shall, upon application, be recognised as binding and enforced by the High Court.
23. Section 3(1) defines an arbitral award as
“any award of an arbitral tribunal and includes an interim arbitral award.”
24. The provision therefore does not restrict enforcement to an award which finally determines all matters arising from the reference.
25. This position was expressly affirmed in Kimaryo v First Riverside Acres Limited & another [2022] KEHC 299 (KLR) , where the Court stated 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.”
26. The facts in Kimaryo (supra) are particularly instructive. The initial award had already been recognised and entered as a judgment of the Court. The Arbitrator had, however, reserved the issue of costs for subsequent determination. A subsequent Additional Award on Costs was thereafter published, and the Court separately recognised and enforced it. In rejecting the argument that the Arbitrator had become functus officio , the Court held:
“ Since the issue of costs was reserved, the issue of Arbitrator being functus officio does not arise.”
27. The Court further found that the subsequent award merely quantified the costs already awarded and ultimately ordered that the Additional Award on Costs be recognised and entered as a judgment of the Court and leave granted to enforce it.
28. The circumstances before this Court are substantially similar. The Final Award of 18 th April 2024 awarded the Applicant recoverable costs but expressly left their quantum to be agreed or assessed subsequently. The parties did not agree, resulting in the Bill of Costs and, ultimately, the Award on Quantum of Costs dated 5 th December 2024. The subsequent award therefore did not reopen or vary the Final Award; it quantified an entitlement which had expressly been reserved for later determination.
29. The same approach was adopted in Ujenzi Bora Investment Limited v Africa Forest Lodges Limited [2022] KEHC 12270 (KLR ) , where the Court separately considered an Additional Arbitral Award on costs and, finding no basis for refusal under Section 37 of the Arbitration Act, recognised and adopted the award and granted leave to enforce it as an order of the Court.
30. I therefore find that the Award on Quantum of Costs is an arbitral award capable of recognition and enforcement under Section 36 of the Arbitration Act.
31. On the second issue, the Respondent contends that the present Application is barred by the doctrines of res judicata and functus officio , on the basis that the Final Award dated 18 th April 2024 had already been recognised and adopted by this Court on 21 st January 2025 and a decree issued thereafter. I find these objections unmerited.
32. Section 7 of the Civil Procedure Act embodies the doctrine of res judicata . In John Florence Maritime Services Limited & another v Cabinet Secretary, Transport & Infrastructure & 3 others [2021] KESC 39 (KLR) , the Supreme Court explained that the doctrine is founded on the principle of finality and prevents multiplicity of litigation. The Court stated:
“For res judicata to be invoked in a civil matter the following elements must be demonstrated:
(a) There is a former Judgment or order which was final;
(b) The Judgment or order was on merit;
(c) The Judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; and
(d) There must be between the first and the second action identical parties, subject matter and cause of action.”
33. In the present case, although the Final Award dated 18 th April 2024 was recognised and adopted by this Court on 21 st January 2025, the present Application concerns the Award on Quantum of Costs dated 5 th December 2024, which had not been presented to or determined by the Court in the earlier proceedings. The Final Award had awarded recoverable costs but left their quantum to be agreed or assessed subsequently. The sum of KES 4,777,049.00 was therefore not the subject of the Court's earlier determination.
34. The present Application consequently does not seek to reopen or re-litigate the matters determined by the Court on 21 st January 2025. Rather, it seeks recognition and enforcement of a subsequent arbitral award arising from an issue which had expressly been reserved for subsequent determination. The requirement of identity of subject matter and cause of action necessary to sustain a plea of res judicata has therefore not been established.
35. As regards functus officio, the Respondent argues that upon recognition and adoption of the Final Award and issuance of the resultant decree, this Court became incapable of entertaining any further application arising from the same arbitral proceedings.
36. The doctrine gives effect to the finality of judicial decisions. In Kenya Broadcasting Corporation v Geoffrey Wakio [2019] KECA 65 (KLR) , the Court of Appeal stated:
“To sum up, a court is functus when the proceedings are fully concluded and the judgment or order has been perfected. This, however, does not foreclose proceedings which are incidental to or natural consequence of the final decision of the court including any other matter on which the court could exercise supplemental jurisdiction. Therefore, in determining whether the court is functus officio one should look at the order or relief which is being sought in the case despite that judgment has already been rendered by the court.”
37. Applying that principle, the present Application does not invite this Court to review, vary or reopen its decision of 21 st January 2025. Instead, it seeks recognition and enforcement of the subsequent Award on Quantum of Costs dated 5 th December 2024, which had not itself been presented to the Court for recognition.
38. The relief now sought is therefore distinct from the relief previously granted. Recognition of the subsequent award would not require the Court to reconsider the merits of the Final Award or disturb the decree arising therefrom. Rather, the Court is being asked to exercise its statutory jurisdiction under Section 36 of the Arbitration Act in respect of a subsequent arbitral award.
39. I therefore find that neither res judicata nor functus officio bars the present Application.
40. On the third issue, Section 99 permits correction of “clerical or arithmetical mistakes in judgments, decrees or orders, or errors arising therein from any accidental slip or omission.” It is therefore directed at correcting a decree so that it accurately reflects what the Court has already determined.
41. That is not the situation here. At the time the decree on the Initial Award was issued, this Court had not recognised or adopted the Award on Quantum of Costs dated 5 th December 2024. The Applicant is consequently not seeking correction of a clerical error in a decree which already incorporated the costs award. It is seeking the statutory recognition and enforcement of a subsequent arbitral award.
42. This distinction is supported by Attorney General & another v MA Consulting Group Limited [2023] KEHC 1988 (KLR) , where the Court recognised the limited role of Section 99 in correcting errors in a decree and cautioned that such correction “must not touch on the arbitral award on costs.”
43. Accordingly, Section 99 cannot properly be invoked to substitute the recognition and enforcement procedure prescribed under Section 36 of the Arbitration Act for an arbitral award which had not previously been adopted by the Court.
DISPOSITION
44. Accordingly, the Chamber Summons dated 21 st July 2025 is hereby allowed and I make the following orders:
i. The Award on Quantum of Costs dated 5 th December 2024, in the sum of KES 4,777,049.00, is hereby recognised and adopted as a judgment of this Court, and the Applicant is granted leave to enforce the same as a decree of this Court.
ii. Costs shall be borne by the Respondent.
It is so ordered.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 17 th DAY OF SEPTEMBER 2026.
MURUNGA, J
Delivered on virtual platform in the presence of:
Ms Mwaura instructed by Ashitiva & Co. for the Applicant
Kevin Babu - Court Assistant