JUDGMENT
Setting aside & Recognition of Arbitral Award
1. There are two applications before the court.
2. The applicant, Supreme Developers Ltd (Supreme Developers) filed the notice of motion dated 18.11.2024 under section 35 of the Arbitration Act seeking that the arbitral award published by Hon. Simon Saili Malonza on 14.5.2024 be set aside. Reference to the applicant in this ruling is to Supreme Developers Ltd (Supreme Developers).
3. The respondent, University of Embu filed the chamber summons dated 28.3.2025 seeking recognition of the award dated 14.5.2024 as binding on the parties and enforceable as an order of this court. Reference to the respondent in this ruling is to University of Embu.
Section 35 application
4. The application is supported by the affidavits sworn by the applicant’s Managing Director, Peter Waweru on 18.11.2024 and 9.4.2025. It is also supported by written submissions dated 16.6.2025.
5. The respondent opposed the application through a preliminary objection dated 13.2.2025 and a replying affidavit sworn by its Vice Chancellor, Prof. Daniel Mugendi Njiru on 13.2.2025.
Section 36 application
6. The application is supported by affidavits sworn by Prof. Daniel Mugendi Njiru on 28.3.2025 and 26.8.2025.
7. The applicant opposed the application through a preliminary objection dated 30.6.2025.
8. The applicant filed a notice in reply to the effect that it would rely on its affidavits sworn on 18.11.2024 and 9.4.2025 as well as its written submissions dated 16.6.2025 in response.
Analysis and Determination
Whether the preliminary objections are merited
1.A preliminary objection ought to be on a pure point of law.
2.In Oraro v Mbaja [2005] KEHC 3182 (KLR), the court described a preliminary objection as “...a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence.”
3. The preliminary objection by the respondent challenges the competency of the applicant’s section 35 application on grounds that; it was made after the three months statutory window given under section 35 (3) of the Arbitration act without the leave of the court; and failure to include the arbitrator as a party.
4.In my considered view, the preliminary objections are not pure points of law as the court must consider evidence.
5.Therefore, I find that the preliminary objections do not meet the threshold explained in the above case. I will consider the points as grounds in opposition to the respective applications.
6.The proper ordering is to start with the application under section 35 and then proceed on to the one under section 36 of the Arbitration Act.
7.Is the section 35 application time-barred?
8.According to the applicant, its application was filed on 18.11.2024, within the statutory timeline because the award was received by the parties on 20.8.2024.
9.On the other hand, the respondent contended that the application was filed 6 months after the publication of the award on 14.5.2024.
10.Section 35 (3) of the Arbitration Act provides: -
“An application for setting aside the arbitral award may not be made after 3 months have elapsed from the date on which the party making that application had received the arbitral award, or if a request had been made under section 34 from the date on which that request had been disposed of by the arbitral award.”
11.In Geothermal Development Company Limited v Lantech (Africa) Limited (Civil Appeal E637 of 2024) [2025] KECA 2045 (KLR) (28 November 2025) (Judgment), the Court of Appeal, re-affirmed that “received” for purposes of the Arbitration Act means notification by the Arbitrator that the award is ready for collection and that delivery does not mean physical or actual delivery of the Award.
12.It is apparent that the parties here lack consensus on when the award was published.
13.The award is dated 14.5.2024.
14.The respondent exhibited the email dated 14.5.2024 and the letter of the same date through which the arbitrator informed the parties that the arbitral award was ready for collection.
15.The applicant exhibited the letter dated 20.8.2024 through which the arbitrator acknowledged payment of the claimant’s share of his fees and indicated that he was releasing the award.
16.Guided by the above case, I find that the arbitrator informed the parties that the award was ready on 14.5.2024. That date was the date of publication of the award. Thus, the statutory timeline is computed from the said date. Three months from 14.5.2024 falls on 14.8.2024.
17.Therefore, I find that the applicant’s setting aside application dated 18.11.2024 was filed outside the statutory timeline and is time-barred. But, I reckon that the applicant has an opportunity to ventilate the grounds under section 37 of the Arbitration Act.
Whether the section 36 application is incompetent and bad in law
18.The applicant challenged the competency of the respondent’s application for being filed in clear contravention of the court’s directions and without leave.
19.The respondent had initially filed its section 36 application dated 13.2.2024. It then filed a notice of withdrawal on 28.3.2025. It also filed the second section 36 application dated 28.3.2025.
20.On 20.3.2025, the court issued directions regarding the disposal of the initial application together with the applicant’s section 35 application.
21.On 1.7.2025, the respondent’s counsel explained that she noted a typographical error on the date of the award and she opted to withdraw the initial application and file a fresh one for tidiness.
22.Courts are enjoined to administer justice without undue regard to procedural technicalities. Article 159 (2) (d) of the Constitution.
23.While the court had issued directions on the application, it had not set a ruling date.
24.I find that the respondent’s explanation to be satisfactory.
25.I do not think that the applicant will be prejudiced by the withdrawal of the initial application because the respondent’s intention was to rectify a typographical error.
26.I therefore reject the contention that the respondent’s section 36 application dated 28.3.2025 is incompetent and bad in law.
Whether the applicant has demonstrated any ground under section 37 of the Arbitration Act
27.Section 37 of the Arbitration Act provides: -
“37. Grounds for refusal of recognition or enforcement
(1) The recognition or enforcement of an arbitral award, irrespective of the state in which it was made, may be refused only—
(a) at the request of the party against whom it is invoked, if that party furnishes to the High Court proof that—
(i) ...; or
(ii) ....;
(iii) the party against whom the arbitral award is invoked 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 it 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, that part of the arbitral award which contains decisions on matters referred to arbitration may be recognised and enforced; or
(v).....
(vi).....
(vii)....
(b)if the High Court finds that—
(i)...
(ii)the recognition or enforcement of the arbitral award would be contrary to the public policy of Kenya.
Alleged denial of the right to be heard – Section 37(1) (a) and (iii) section 37(1)(b)(ii)
28.The applicant’s major complaint is that it was not afforded a fair opportunity to present its claim and defend the counterclaim. It argued that its right to access to justice under Article 48 of the Constitution was violated.
29.The respondent asserted that the applicant was accorded a fair hearing but chose to abuse the arbitral proceedings. It faulted the applicant for inviting the court to delve into the merits of the award.
Conflict of interest
30.The applicant challenged the arbitrator's dismissal of its objection to the respondent being represented by Mr. Nyagah Kithinji, notwithstanding his previous role as an independent expert during the parties' initial dispute resolution process. It contended that this gave rise to a conflict of interest that undermined the fairness of the proceedings.
31.The respondent faulted the applicant for not challenging the arbitrator’s ruling on the issue that was delivered on within the 3 months statutory timeline.
32.The arbitrator issued the ruling on the issue of conflict of interest on 30.6.2022. The applicant did not challenge the ruling within the 3 months statutory timeline under section 35 (3).
33.Therefore, the applicant is precluded from raising it at this juncture.
Delay
34.The applicant also complained that the arbitral proceedings were unduly delayed between November 2022 and April 2023 due to the unavailability of the respondent's counsel. It faulted the arbitrator for granting the lengthy adjournment despite its objection.
35.The respondent highlighted numerous adjournments attributable to the applicant and its non-payment of adjournment costs for the adjournment of 19.7.2022 to date. It also pointed out that despite the non-payment, it allowed the tribunal to proceed with hearing of the applicant’s case on 11.11.2022, 21.11.2022 and 24.11.2022.
36.On 22.5.2023, upon conclusion of the respondent’s examination in chief, the applicant’s counsel ceased acting. Its director sought 60 days to appoint counsel. The arbitrator granted it 14 days to do so. On 7.6.2023, the applicant did not appear for the hearing. It later sent an email that it would not be attending. The arbitrator then directed the parties to agree on the dates for filing submissions. However, the applicant did not respond to the respondent’s email of 12.6.2023.
37.The applicant did not show that it raised a challenge regarding the arbitrator’s independence or impartiality before him in accordance with sections 13 and 14 of the Arbitration act.
38.Thus, it is precluded from raising these issues at this stage.
Dismissal of its claim due to nonpayment of deposit
39.The applicant faulted the arbitrator for dismissing its claim for failing to pay additional deposit towards his fees and expenses. It submitted that section 26 (f) of the Arbitration act allows the arbitrator to dismiss a claim if a party fails to comply with a peremptory order. It however contended that there was no justification to dismiss its claim as the respondent has agreed to settle the balance of its portion of the arbitrator’s fees and expenses and payment was made by the respondent on the same day.
40.The respondent pointed out that while it paid the respondent’s share of the fees, on 5.4.2023, the parties recorded a consent to the effect that the Tribunal would set aside the orders dismissing the applicant’s claim on condition that the applicant would refund it the amount paid on its behalf within three months upon which the matter would proceed to hearing.
41.The respondent highlighted that the applicant did not comply with the conditions hence its claim stood dismissed. It also highlighted that the ruling dismissing the applicant’s claim has not been set aside.
Petition challenging arbitrator’s unfairness; Petition E035 of 2024
42.The applicant argued that despite filing a petition to challenge the arbitrator’s unfairness through refusal to reinstate its claim, he proceeded to determine the matter and issue the award. It contended that it was waiting for the outcome of the court proceedings so that it could file its submissions.
43.The respondent indicated that the court rejected the applicant’s application for stay of the arbitral process. It faulted the applicant for forum shopping and abuse of the court process.
44.I should add here that, any attempt to hold arbitral process using other proceedings must be thwarted or at least be carefully examined by the court in order not to obviate the duty to promote alternative justice systems we call AJS. This is in line with the principle of co-equality which conforms to our transformative Constitution and rejects any hegemony upon AJS.
45.Arbitration is an independent process. It is recognized under Article 159 (2) (c) of the Constitution. Courts are enjoined to respect, protect and transform the alternative methods of dispute resolution.
46.The applicant did not controvert the respondent’s position that the court did not stay the arbitral process.
47.The applicant elected not to participate in the arbitration even though the process was not stayed by the court. Such unilateral decisions relating to mutual processes is frowned upon by the law and run counter to article 159(2)(c) of the Constitution. ‘Every person has an obligation to respect, uphold and defend this Constitution.’ Art.3(1) of the Constitution. Based on this obligation, a party in the arbitral process should never attempt to or exert any hegemonic control or dictation upon the mutual process to the detriment of the process and the other party. No one party has a veto power of the process they mutually agreed to. The actions by the respondent are harmful and offensive to the process of arbitration and the law, and cannot be a basis for rejection of the award.
48.The respondent has also not not demonstrated that its right to access to justice was violated as it was the author of the calculated breaches in the hope that they will pass for grounds for setting aside the arbitral award.
49.The arbitrator lawfully made decisions and set reasonable terms thereof which were also reinforced by parties’ consent. But, the respondent breached them with impunity.
50.Therefore, the applicant has not shown that the arbitrator contravened the Constitution or any statute or the public policy of Kenya by proceeding with the arbitration and publishing the award.
Excess of jurisdiction and failure to determine the dispute referred - section 37(1)(a)(iv)) and section 37(1)(b)(ii)
51.The respondent contended that the arbitrator exceeded the scope of the reference by determining issues arising from contracts between the applicant and third parties, which were not part of the parties' arbitration agreement or the dispute referred for determination.
52.It further argued that the arbitrator failed to consider material evidence relating to contract variations undertaken by third parties, thereby inflating the applicant's counterclaim. According to the respondent, the award permitted the applicant to recover the full contract value despite the applicant having completed over half of the works and the remaining works having been awarded to a third party at the full original contract price, resulting in unjust enrichment.
53.The applicant submitted that the award sanctions unjust enrichment and is therefore contrary to public policy, including the principles of the rule of law, equity and social justice.
54.The applicant’s challenges regarding the arbitrator’s jurisdiction were not raised before the arbitrator within the timelines specified under section 17 (2) and (3).
55.Thus, the issue of jurisdiction cannot be raised at this stage.
56.The applicant’s contention that the arbitrator failed to consider material evidence goes into the merits of the award. In any case, it was not established that the award was based on no evidence as to make it such perverse that no reasonable tribunal would so decide. The ground was generalized. It does not hold sway under section 37.
57.Further, the applicant has not shown that the arbitrator contravened the Constitution or any statute or the public policy of Kenya by issuing an award resulting in unjust enrichment.
58.On the whole, I find that the respondent has not demonstrated any ground for refusal of recognition or enforcement of the award under section 37 of the Arbitration Act.
59.Section 36 of the Arbitration Act provides that: -
“36. Recognition and enforcement of awards
(1) A domestic arbitral award, shall be recognized as binding and, upon application in writing to the High Court, shall be enforced subject to this section and section 37.
(2) ….
(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.”
60.The respondent exhibited a certified copy of the arbitration agreement contained in clause 38 of the contract dated 22.6.2018. It also exhibited a certified copy of the final award dated 14.5.2024.
61.Accordingly, I find that the respondent has met the prerequisites for recognition and enforcement of the final award under section 36 of the Arbitration Act as an order of the court.
Disposal
62.In conclusion, I make the following orders: -
(1) The notice of motion dated 18.11.2024 is struck out for being time-barred under Section 35(3) of the Arbitration Act.
(2) The chamber summons dated 28.3.2025 is allowed.
(3) The final award dated 14.5.2024 issued by Hon. Simon Saili Malonza on is hereby recognized as binding and enforceable as a decree of this court pursuant to Section 36 of the Arbitration Act.
(4) The applicant in the chamber summons allowed shall have the costs of both applications.
Dated, signed and delivered at Nairobi through Microsoft Teams online application this 30th day of July 2026
--------------
F. Gikonyo M
Judge
In the presence of: -
Ms. Murugi for Respondent
Muinde for Applicant
CA- Ivan/Aggrey
Setting aside & Recognition of Arbitral Award
1. There are two applications before the court.
2. The applicant, Supreme Developers Ltd (Supreme Developers) filed the notice of motion dated 18.11.2024 under section 35 of the Arbitration Act seeking that the arbitral award published by Hon. Simon Saili Malonza on 14.5.2024 be set aside. Reference to the applicant in this ruling is to Supreme Developers Ltd (Supreme Developers).
3. The respondent, University of Embu filed the chamber summons dated 28.3.2025 seeking recognition of the award dated 14.5.2024 as binding on the parties and enforceable as an order of this court. Reference to the respondent in this ruling is to University of Embu.
Section 35 application
4. The application is supported by the affidavits sworn by the applicant’s Managing Director, Peter Waweru on 18.11.2024 and 9.4.2025. It is also supported by written submissions dated 16.6.2025.
5. The respondent opposed the application through a preliminary objection dated 13.2.2025 and a replying affidavit sworn by its Vice Chancellor, Prof. Daniel Mugendi Njiru on 13.2.2025.
Section 36 application
6. The application is supported by affidavits sworn by Prof. Daniel Mugendi Njiru on 28.3.2025 and 26.8.2025.
7. The applicant opposed the application through a preliminary objection dated 30.6.2025.
8. The applicant filed a notice in reply to the effect that it would rely on its affidavits sworn on 18.11.2024 and 9.4.2025 as well as its written submissions dated 16.6.2025 in response.
Analysis and Determination
Whether the preliminary objections are merited
1.A preliminary objection ought to be on a pure point of law.
2.In Oraro v Mbaja [2005] KEHC 3182 (KLR), the court described a preliminary objection as “...a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence.”
3. The preliminary objection by the respondent challenges the competency of the applicant’s section 35 application on grounds that; it was made after the three months statutory window given under section 35 (3) of the Arbitration act without the leave of the court; and failure to include the arbitrator as a party.
4.In my considered view, the preliminary objections are not pure points of law as the court must consider evidence.
5.Therefore, I find that the preliminary objections do not meet the threshold explained in the above case. I will consider the points as grounds in opposition to the respective applications.
6.The proper ordering is to start with the application under section 35 and then proceed on to the one under section 36 of the Arbitration Act.
7.Is the section 35 application time-barred?
8.According to the applicant, its application was filed on 18.11.2024, within the statutory timeline because the award was received by the parties on 20.8.2024.
9.On the other hand, the respondent contended that the application was filed 6 months after the publication of the award on 14.5.2024.
10.Section 35 (3) of the Arbitration Act provides: -
“An application for setting aside the arbitral award may not be made after 3 months have elapsed from the date on which the party making that application had received the arbitral award, or if a request had been made under section 34 from the date on which that request had been disposed of by the arbitral award.”
11.In Geothermal Development Company Limited v Lantech (Africa) Limited (Civil Appeal E637 of 2024) [2025] KECA 2045 (KLR) (28 November 2025) (Judgment), the Court of Appeal, re-affirmed that “received” for purposes of the Arbitration Act means notification by the Arbitrator that the award is ready for collection and that delivery does not mean physical or actual delivery of the Award.
12.It is apparent that the parties here lack consensus on when the award was published.
13.The award is dated 14.5.2024.
14.The respondent exhibited the email dated 14.5.2024 and the letter of the same date through which the arbitrator informed the parties that the arbitral award was ready for collection.
15.The applicant exhibited the letter dated 20.8.2024 through which the arbitrator acknowledged payment of the claimant’s share of his fees and indicated that he was releasing the award.
16.Guided by the above case, I find that the arbitrator informed the parties that the award was ready on 14.5.2024. That date was the date of publication of the award. Thus, the statutory timeline is computed from the said date. Three months from 14.5.2024 falls on 14.8.2024.
17.Therefore, I find that the applicant’s setting aside application dated 18.11.2024 was filed outside the statutory timeline and is time-barred. But, I reckon that the applicant has an opportunity to ventilate the grounds under section 37 of the Arbitration Act.
Whether the section 36 application is incompetent and bad in law
18.The applicant challenged the competency of the respondent’s application for being filed in clear contravention of the court’s directions and without leave.
19.The respondent had initially filed its section 36 application dated 13.2.2024. It then filed a notice of withdrawal on 28.3.2025. It also filed the second section 36 application dated 28.3.2025.
20.On 20.3.2025, the court issued directions regarding the disposal of the initial application together with the applicant’s section 35 application.
21.On 1.7.2025, the respondent’s counsel explained that she noted a typographical error on the date of the award and she opted to withdraw the initial application and file a fresh one for tidiness.
22.Courts are enjoined to administer justice without undue regard to procedural technicalities. Article 159 (2) (d) of the Constitution.
23.While the court had issued directions on the application, it had not set a ruling date.
24.I find that the respondent’s explanation to be satisfactory.
25.I do not think that the applicant will be prejudiced by the withdrawal of the initial application because the respondent’s intention was to rectify a typographical error.
26.I therefore reject the contention that the respondent’s section 36 application dated 28.3.2025 is incompetent and bad in law.
Whether the applicant has demonstrated any ground under section 37 of the Arbitration Act
27.Section 37 of the Arbitration Act provides: -
“37. Grounds for refusal of recognition or enforcement
(1) The recognition or enforcement of an arbitral award, irrespective of the state in which it was made, may be refused only—
(a) at the request of the party against whom it is invoked, if that party furnishes to the High Court proof that—
(i) ...; or
(ii) ....;
(iii) the party against whom the arbitral award is invoked 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 it 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, that part of the arbitral award which contains decisions on matters referred to arbitration may be recognised and enforced; or
(v).....
(vi).....
(vii)....
(b)if the High Court finds that—
(i)...
(ii)the recognition or enforcement of the arbitral award would be contrary to the public policy of Kenya.
Alleged denial of the right to be heard – Section 37(1) (a) and (iii) section 37(1)(b)(ii)
28.The applicant’s major complaint is that it was not afforded a fair opportunity to present its claim and defend the counterclaim. It argued that its right to access to justice under Article 48 of the Constitution was violated.
29.The respondent asserted that the applicant was accorded a fair hearing but chose to abuse the arbitral proceedings. It faulted the applicant for inviting the court to delve into the merits of the award.
Conflict of interest
30.The applicant challenged the arbitrator's dismissal of its objection to the respondent being represented by Mr. Nyagah Kithinji, notwithstanding his previous role as an independent expert during the parties' initial dispute resolution process. It contended that this gave rise to a conflict of interest that undermined the fairness of the proceedings.
31.The respondent faulted the applicant for not challenging the arbitrator’s ruling on the issue that was delivered on within the 3 months statutory timeline.
32.The arbitrator issued the ruling on the issue of conflict of interest on 30.6.2022. The applicant did not challenge the ruling within the 3 months statutory timeline under section 35 (3).
33.Therefore, the applicant is precluded from raising it at this juncture.
Delay
34.The applicant also complained that the arbitral proceedings were unduly delayed between November 2022 and April 2023 due to the unavailability of the respondent's counsel. It faulted the arbitrator for granting the lengthy adjournment despite its objection.
35.The respondent highlighted numerous adjournments attributable to the applicant and its non-payment of adjournment costs for the adjournment of 19.7.2022 to date. It also pointed out that despite the non-payment, it allowed the tribunal to proceed with hearing of the applicant’s case on 11.11.2022, 21.11.2022 and 24.11.2022.
36.On 22.5.2023, upon conclusion of the respondent’s examination in chief, the applicant’s counsel ceased acting. Its director sought 60 days to appoint counsel. The arbitrator granted it 14 days to do so. On 7.6.2023, the applicant did not appear for the hearing. It later sent an email that it would not be attending. The arbitrator then directed the parties to agree on the dates for filing submissions. However, the applicant did not respond to the respondent’s email of 12.6.2023.
37.The applicant did not show that it raised a challenge regarding the arbitrator’s independence or impartiality before him in accordance with sections 13 and 14 of the Arbitration act.
38.Thus, it is precluded from raising these issues at this stage.
Dismissal of its claim due to nonpayment of deposit
39.The applicant faulted the arbitrator for dismissing its claim for failing to pay additional deposit towards his fees and expenses. It submitted that section 26 (f) of the Arbitration act allows the arbitrator to dismiss a claim if a party fails to comply with a peremptory order. It however contended that there was no justification to dismiss its claim as the respondent has agreed to settle the balance of its portion of the arbitrator’s fees and expenses and payment was made by the respondent on the same day.
40.The respondent pointed out that while it paid the respondent’s share of the fees, on 5.4.2023, the parties recorded a consent to the effect that the Tribunal would set aside the orders dismissing the applicant’s claim on condition that the applicant would refund it the amount paid on its behalf within three months upon which the matter would proceed to hearing.
41.The respondent highlighted that the applicant did not comply with the conditions hence its claim stood dismissed. It also highlighted that the ruling dismissing the applicant’s claim has not been set aside.
Petition challenging arbitrator’s unfairness; Petition E035 of 2024
42.The applicant argued that despite filing a petition to challenge the arbitrator’s unfairness through refusal to reinstate its claim, he proceeded to determine the matter and issue the award. It contended that it was waiting for the outcome of the court proceedings so that it could file its submissions.
43.The respondent indicated that the court rejected the applicant’s application for stay of the arbitral process. It faulted the applicant for forum shopping and abuse of the court process.
44.I should add here that, any attempt to hold arbitral process using other proceedings must be thwarted or at least be carefully examined by the court in order not to obviate the duty to promote alternative justice systems we call AJS. This is in line with the principle of co-equality which conforms to our transformative Constitution and rejects any hegemony upon AJS.
45.Arbitration is an independent process. It is recognized under Article 159 (2) (c) of the Constitution. Courts are enjoined to respect, protect and transform the alternative methods of dispute resolution.
46.The applicant did not controvert the respondent’s position that the court did not stay the arbitral process.
47.The applicant elected not to participate in the arbitration even though the process was not stayed by the court. Such unilateral decisions relating to mutual processes is frowned upon by the law and run counter to article 159(2)(c) of the Constitution. ‘Every person has an obligation to respect, uphold and defend this Constitution.’ Art.3(1) of the Constitution. Based on this obligation, a party in the arbitral process should never attempt to or exert any hegemonic control or dictation upon the mutual process to the detriment of the process and the other party. No one party has a veto power of the process they mutually agreed to. The actions by the respondent are harmful and offensive to the process of arbitration and the law, and cannot be a basis for rejection of the award.
48.The respondent has also not not demonstrated that its right to access to justice was violated as it was the author of the calculated breaches in the hope that they will pass for grounds for setting aside the arbitral award.
49.The arbitrator lawfully made decisions and set reasonable terms thereof which were also reinforced by parties’ consent. But, the respondent breached them with impunity.
50.Therefore, the applicant has not shown that the arbitrator contravened the Constitution or any statute or the public policy of Kenya by proceeding with the arbitration and publishing the award.
Excess of jurisdiction and failure to determine the dispute referred - section 37(1)(a)(iv)) and section 37(1)(b)(ii)
51.The respondent contended that the arbitrator exceeded the scope of the reference by determining issues arising from contracts between the applicant and third parties, which were not part of the parties' arbitration agreement or the dispute referred for determination.
52.It further argued that the arbitrator failed to consider material evidence relating to contract variations undertaken by third parties, thereby inflating the applicant's counterclaim. According to the respondent, the award permitted the applicant to recover the full contract value despite the applicant having completed over half of the works and the remaining works having been awarded to a third party at the full original contract price, resulting in unjust enrichment.
53.The applicant submitted that the award sanctions unjust enrichment and is therefore contrary to public policy, including the principles of the rule of law, equity and social justice.
54.The applicant’s challenges regarding the arbitrator’s jurisdiction were not raised before the arbitrator within the timelines specified under section 17 (2) and (3).
55.Thus, the issue of jurisdiction cannot be raised at this stage.
56.The applicant’s contention that the arbitrator failed to consider material evidence goes into the merits of the award. In any case, it was not established that the award was based on no evidence as to make it such perverse that no reasonable tribunal would so decide. The ground was generalized. It does not hold sway under section 37.
57.Further, the applicant has not shown that the arbitrator contravened the Constitution or any statute or the public policy of Kenya by issuing an award resulting in unjust enrichment.
58.On the whole, I find that the respondent has not demonstrated any ground for refusal of recognition or enforcement of the award under section 37 of the Arbitration Act.
59.Section 36 of the Arbitration Act provides that: -
“36. Recognition and enforcement of awards
(1) A domestic arbitral award, shall be recognized as binding and, upon application in writing to the High Court, shall be enforced subject to this section and section 37.
(2) ….
(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.”
60.The respondent exhibited a certified copy of the arbitration agreement contained in clause 38 of the contract dated 22.6.2018. It also exhibited a certified copy of the final award dated 14.5.2024.
61.Accordingly, I find that the respondent has met the prerequisites for recognition and enforcement of the final award under section 36 of the Arbitration Act as an order of the court.
Disposal
62.In conclusion, I make the following orders: -
(1) The notice of motion dated 18.11.2024 is struck out for being time-barred under Section 35(3) of the Arbitration Act.
(2) The chamber summons dated 28.3.2025 is allowed.
(3) The final award dated 14.5.2024 issued by Hon. Simon Saili Malonza on is hereby recognized as binding and enforceable as a decree of this court pursuant to Section 36 of the Arbitration Act.
(4) The applicant in the chamber summons allowed shall have the costs of both applications.
Dated, signed and delivered at Nairobi through Microsoft Teams online application this 30th day of July 2026
--------------
F. Gikonyo M
Judge
In the presence of: -
Ms. Murugi for Respondent
Muinde for Applicant
CA- Ivan/Aggrey