Introduction and Background
1. On 4 th April 2025, the arbitral tribunal, Calvin Nyachoti (“the Arbitrator”) published an award where he ruled that the Respondent had on a balance of probability proven its case against the Applicant and awarded it a total principal sum of Kshs. 37,439,847.00 comprising of Final Certificate No. 6 - Kshs. 10,679,272.52, Retention Sums - Kshs. 2,939,970.20, Idle Construction Machinery and Tools – Kshs. 18,764,160.00 and Loss of Profit - Kshs. 4,478,475.40; interest and costs of the arbitration reference (“the Award”)
2. Both parties have now filed applications before the court with the Applicant seeking to set aside the Award through its Notice of Motion dated 17 th June 2025 whereas the Respondent seeks to enforce it through its Chamber Summons dated 26 th June 2025. The applications have been canvassed by way of written submissions that I have considered together with the pleadings and I will be making relevant references to the same in my analysis and determination below.
Analysis and Determination
3. I propose to first deal with the Applicant’s application to set aside the Award. The Applicant depones that that the Arbitrator acted improperly in several ways including that he exceeded his jurisdiction as the dispute was only about Interim Payment Certificate No. 6, however, the Arbitrator went on to decide multiple other claims that were never properly notified or agreed upon, including loss of profits, idle equipment charges, extended preliminaries, confiscated machinery, VAT, and termination damages. The Applicant argues this violated Clause 45 of the Joint Building Council(JBC) Contract between the parties which sets out the required dispute resolution procedure.
4. The Applicant further states that the original notice of arbitration dated30th September 2015, gave it only seven days to agree on an arbitrator, instead of the thirty days required by the contract and that no valid notice was ever given for the additional claims. It states that the Arbitrator rewrote the JBC Contract as he allegedly found that the parties had acceded by conduct to the expanded scope of the dispute, effectively waiving the JBC Contract's notice requirements. The Applicant asserts that an arbitrator cannot rewrite a contract or invent a waiver where none existed.
5. The Application also claims that the Arbitrator violated public policy and its right to a fair hearing as the Arbitrator allegedly acted as an “advocate for the Respondent”, awarded claims without evidence, and failed to act fairly. Thus, the Award is said to conflict with Kenyan public policy and the Applicant's constitutional right to access justice and a fair trial. The Applicant adds that the Arbitrator received full payment from the parties by 17 th September2024, but he did not release the final Award until 4 th April 2025 and it avers that this delay raises legitimate doubts about the due administration and integrity of the arbitral process. As such, the Arbitrator urges that the Award be set aside or in the alternative, that the dispute be sent back to the Arbitrator for reconsideration with guidance from the Court.
6. In the Respondent’s response through the replying affidavit of its Managing Director, Premji Vekaria, sworn on 15 th September 2025, it depones that section 10 of the Arbitration Act restricts court intervention in arbitral matters, and section 32A provides that arbitral awards are final and binding. It states that the Applicant is simply unhappy with an adverse outcome and is trying to re-litigate the case, which the Court cannot allow. It contends that the Arbitrator had wide jurisdiction under the Contract and points to Clause 45.9 of the JBC Contract, which gives the Arbitrator power to open up, review and revise any certificate, opinion, decision, requirement or notice and decide all matters in dispute. That the Arbitrator expressly addressed the scope of his jurisdiction in the Award and found it was not confined to Certificate No. 6 but extended to the entire dispute between the parties.
7. The Respondent claims that the Applicant itself expanded the scope of the arbitration and notes that the Applicant filed a wide-ranging counterclaim covering issues like liquidated damages, demolition costs, additional completion costs, and loss of rent. The Respondent argues it is disingenuous for the Applicant to now complain about the Arbitrator exceeding jurisdiction when the Applicant itself brought many of those very issues before the Arbitrator. That the Applicant waived its right to object under section 5 of the Arbitration Act by actively participating in the arbitration on issues beyond Certificate No. 6 including filing a counterclaim. The Respondent claims that st the Preliminary Meeting on 21 st July 2022 and when directions were issued on 22 nd July 2022, the Applicant raised no objection limiting the Arbitrator’s jurisdiction. The Respondent argues that the Applicant's present objection is an afterthought and that contrary to the Applicant's claim, letters dated 21 st October 2015 and 15 th December 2015 from Steg Consultants raised further disputes beyond Certificate No. 6, including defective works, wrongful termination, demobilization of equipment, and obstruction of site access. That the sufficiency of those notices was a matter decided by the Arbitrator, and the Applicant cannot ask the Court to revisit that factual finding.
8. The Respondent describes the application as a thinly veiled appeal, a stratagem to evade payment, and mischievous and misconceived. That the grounds relied upon by the Applicant fall outside the narrow grounds under section 35 of the Arbitration Act . For these reasons, the Respondent urges the court to dismiss the Applicant's application with costs.
9. It is not in dispute that under section 35 of the Arbitration Act the court has jurisdiction to set aside an Award if it dealt with a dispute not contemplated by or not falling within the terms of the reference to arbitration or contains decisions on matters beyond the scope of the reference to arbitration, provided that if the decisions on matters referred to arbitration can be separated from those not so referred, only that part of the arbitral award which contains decisions on matters not referred to arbitration may be set aside. The Court of Appeal, in Synergy Industrial Credit Limited v Cape Holdings Limited [2020] KECA 208 (KLR) observed as follows:
In determining whether the arbitral tribunal has dealt with a dispute not contemplated or falling within the terms of the reference, or whether its award contains decisions on matters beyond the scope of the reference to arbitration, the arbitral clause or agreement is critical . Other relevant considerations, with-out in any way prescribing a closed catalogue, would include the subject matter, pleadings and submissions by the parties, as well as their conduct in the arbitration. Pleadings, however, must be considered with circumspection because, as the US Court of Appeals for the Ninth Circuit observed in Ministry of Defence of the Islamic Republic of Iran v. Gould, Inc. (supra), the real issue in such an inquiry is whether the award has exceeded the scope of the arbitration agreement, not whether it has exceeded the parties’ pleadings.
10. As this court (Gikonyo J.,) in Kenya Tea Development Agency Ltd & 7 others v Savings Tea Brokers Limited [2015] KEHC 6030 (KLR) expressed itself, the jurisdiction of the arbitrator is tethered by the arbitration agreement, reference and the law. The express words used in the arbitration agreement or as interpreted with reference to the subject matter of the contract will determine whether the issues raised by an applicant are contemplated by the agreement or fall within the terms or scope of the reference to arbitration. Even where general, broad, generous and elastic words are used in an arbitration agreement or reference to arbitration, courts will still interpret them by reference to the subject matter of the contract.
11. Therefore, the Court must begin with the arbitration clause itself. Clause 45.1 uses mandatory language that “ …such dispute shall be notified in writing ” meaning the parties expressly agreed that no dispute would be referred to arbitration unless a written notice setting out the dispute had first been issued. It is common ground that the only written notice issued by the Respondent was the letter dated 30 th September 2015 which notice at clause 3 expressly limited the dispute to "…the contractor's entitlement to certificate for payment." The Respondent issued no further written notice notifying the Applicant of any intention to refer any other dispute to arbitration such as loss of profits, idle construction machinery and tools; extended preliminaries, confiscated machinery and tools; VAT on the additional claims and; termination-related findings.
12. Whereas the Respondent argues that the Applicant waived its right to object by participating in the arbitration and filing a counterclaim, the court rejects that argument for reasons that first, section 5 of the Arbitration Act provides for waiver only where a party proceeds with the arbitration without stating its objection. At paras. 18 and 19 of its Statement of Defence and Counterclaim dated 26 th January 2017, the Applicant expressly objected to the expanded scope of the reference and his objection was repeated in the Amended Statement of Defence and Counterclaim dated 31 st October 2022. Second, the filing of a counterclaim does not constitute a waiver of the right to object to jurisdiction. A party may defend itself against claims brought before the tribunal while maintaining that the tribunal lacks jurisdiction over those claims. This is expressly permitted under the doctrine of kompetenz-kompetenz enshrined in section 17 of the Arbitration Act . Third, the fact that the Applicant did not verbally repeat its objection at the Preliminary Meeting of 21 st July 2022 is not determinative. Having already raised the objection in its written pleadings, the Applicant was not required to reiterate it orally at every subsequent procedural step.
13. The Respondent also relies on Clause 45.9, which grants the Arbitrator power to "… open up, review and revise any certificate, opinion, decision, requirement or notice.. ." This Court finds that Clause 45.9 cannot be read to dispense with the mandatory notice requirement in Clause 45.1. Clause 45.9 allows the Arbitrator to review a notice that was issued. It does not allow the Arbitrator to dispense with the notice requirement altogether. To hold otherwise would render Clause 45.1 superfluous, which is a cardinal sin of contractual interpretation. The Court of Appeal, in Centurion Engineers & Builders Limited v Kenya Bureau of Standards [2023] KECA 1289 (KLR) reaffirmed that an arbitral tribunal's jurisdiction is derived from the arbitration agreement. The parties did not agree to arbitrate claims that were not properly notified. The Arbitrator therefore had no jurisdiction to determine those claims and I further note that in the Award, he found that the parties had waived their right to object by conduct. This Court respectfully disagrees as the Applicant's conduct was consistent with preserving its objection. It raised the objection in its pleadings and maintained the objection throughout. It cannot be said to have waived a right that it actively asserted.
14. Having found that the Arbitrator determined claims that were not properly referred to arbitration, this Court must now consider whether those claims can be separated from the claims that were properly referred. It follows that the claim that was properly referred was the dispute over Certificate No. 6, amounting to Kshs. 10,679,272.52 as awarded by the Arbitrator. The claims that were not properly referred include the Retention Fund where Kshs. 2,939,970.20 was awarded, Idle labour and supervision where Kshs. 577,790.77 was awarded, Idle construction machinery and tools where Kshs. 18,764,160.00 was awarded and Loss of profit where Kshs. 4,478,475.40 was awarded. I find that these claims are separate and distinct from the dispute over Certificate No. 6 and the Arbitrator's awards and findings on these claims can be severed from his decision on Certificate No. 6 without affecting the coherence of the Award.
15. Thus, I find that the Arbitrator's award of Kshs. 10,679,272.52 for Certificate No. 6 is upheld as it was properly within the scope of the reference to arbitration. The Arbitrator's finding that the Respondent is entitled to recover Kshs. 2,684,614.00 from the Applicant on account of unrecovered advance payment is also upheld and so are his dismissals of the Respondent's remaining counterclaims.
16. It is also common ground that the court also has jurisdiction to set aside an award if it goes beyond the public policy of the country. It is not lost to me that a claim that an award is "contrary to public policy" is a high-threshold argument and it has been held that this ground is not a backdoor for appealing the merits of an award. It is reserved for awards that shock the conscience, are inherently immoral, or violate the fundamental principles of justice and morality in Kenya (see Christ for All Nations v Apollo Insurance Co Ltd [2002] 2 E.A 366 and Centurion Engineers & Builders Limited v Kenya Bureau of Standards(supra) ]
17. I have gone through the Award and I find that the same is not in violation of Kenya’s public policy as argued by the Applicant and there is no credible basis to set aside the Award on this ground.This is a commercial dispute between two private companies and no national interest is implicated and the Arbitrator held a full hearing with witnesses, evidence, and submissions and there is no allegation of bribery, forgery, or corruption.
18. On the ground that the Arbitrator delayed releasing the Award by seven months, while this is procedurally unfortunate, delay alone does not violate public policy unless it was deliberate, malicious, or caused prejudice that shocks the conscience. The Applicant has not alleged that the delay was used to manipulate the outcome.
19. In summary, I find that the Award is set aside but only to the extent of to the extent that it determines claims that were not properly referred to arbitration, namely the award of Kshs. 2,939,970.20 for Retention Fund; the award of Kshs. 577,790.77 for Idle labour and supervision; the award of Kshs. 18,764,160.00 for Idle construction machinery and tools; the award of Kshs. 4,478,475.40 for Loss of profit and the interest awarded on the aforementioned sums.
20. Turning to the Respondent’s application to enforce the Award, since the grounds to stop its enforcement are similar to the ones for setting it aside and since I have allowed one of the grounds by the Applicant above, I find that the Award can only be enforced and recognized as a decree of the court to the extent on the findings of Kshs. 10,679,272.52 for Certificate No. 6.
Conclusion and Disposition
21. In the upshot I now make the following final orders:
1) The Final Award by Calvin Nyachoti published on 4 th April 2025 is hereby partially set aside to the extent that it determines claims that were not properly referred to arbitration, namely:
(i) The award of Kshs. 2,939,970.20 for Retention Fund;(ii) The award of Kshs. 577,790.77 for Idle labour and supervision;
(iii) The award of Kshs. 18,764,160.00 for Idle construction machinery and tools;(iv) The award of Kshs. 4,478,475.40 for Loss of profit;(v) The interest awarded on the above sums.
2) The application dated 26 th June 2025 is allowed on the terms that the Final Award by Calvin Nyachoti published on 4 th April 2025 be and is hereby recognised as binding and leave be and is hereby granted to the Respondent, VINAYAK BUILDERS LIMITED to enforce it as a decree of this court to the extent of Kshs. 10,679,272.52 for Certificate No. 6
3) Given that both parties have succeeded in part and failed in part, this Court orders that each party shall bear its own costs of their applications.
DATED SIGNED AND DELIVERED virtually this 15 th DAY OF MAY 2026
............................................................................
J W W MONGARE
JUDGE
IN THE PRESENCE OF
1. Mr. Mugisha for the Applicant- S&M Properties
2. Ms. Joy Anami for the Respondents – Vinayak Builders
3. Amos- Court Assistant
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1. On 4 th April 2025, the arbitral tribunal, Calvin Nyachoti (“the Arbitrator”) published an award where he ruled that the Respondent had on a balance of probability proven its case against the Applicant and awarded it a total principal sum of Kshs. 37,439,847.00 comprising of Final Certificate No. 6 - Kshs. 10,679,272.52, Retention Sums - Kshs. 2,939,970.20, Idle Construction Machinery and Tools – Kshs. 18,764,160.00 and Loss of Profit - Kshs. 4,478,475.40; interest and costs of the arbitration reference (“the Award”)
2. Both parties have now filed applications before the court with the Applicant seeking to set aside the Award through its Notice of Motion dated 17 th June 2025 whereas the Respondent seeks to enforce it through its Chamber Summons dated 26 th June 2025. The applications have been canvassed by way of written submissions that I have considered together with the pleadings and I will be making relevant references to the same in my analysis and determination below.
Analysis and Determination
3. I propose to first deal with the Applicant’s application to set aside the Award. The Applicant depones that that the Arbitrator acted improperly in several ways including that he exceeded his jurisdiction as the dispute was only about Interim Payment Certificate No. 6, however, the Arbitrator went on to decide multiple other claims that were never properly notified or agreed upon, including loss of profits, idle equipment charges, extended preliminaries, confiscated machinery, VAT, and termination damages. The Applicant argues this violated Clause 45 of the Joint Building Council(JBC) Contract between the parties which sets out the required dispute resolution procedure.
4. The Applicant further states that the original notice of arbitration dated30th September 2015, gave it only seven days to agree on an arbitrator, instead of the thirty days required by the contract and that no valid notice was ever given for the additional claims. It states that the Arbitrator rewrote the JBC Contract as he allegedly found that the parties had acceded by conduct to the expanded scope of the dispute, effectively waiving the JBC Contract's notice requirements. The Applicant asserts that an arbitrator cannot rewrite a contract or invent a waiver where none existed.
5. The Application also claims that the Arbitrator violated public policy and its right to a fair hearing as the Arbitrator allegedly acted as an “advocate for the Respondent”, awarded claims without evidence, and failed to act fairly. Thus, the Award is said to conflict with Kenyan public policy and the Applicant's constitutional right to access justice and a fair trial. The Applicant adds that the Arbitrator received full payment from the parties by 17 th September2024, but he did not release the final Award until 4 th April 2025 and it avers that this delay raises legitimate doubts about the due administration and integrity of the arbitral process. As such, the Arbitrator urges that the Award be set aside or in the alternative, that the dispute be sent back to the Arbitrator for reconsideration with guidance from the Court.
6. In the Respondent’s response through the replying affidavit of its Managing Director, Premji Vekaria, sworn on 15 th September 2025, it depones that section 10 of the Arbitration Act restricts court intervention in arbitral matters, and section 32A provides that arbitral awards are final and binding. It states that the Applicant is simply unhappy with an adverse outcome and is trying to re-litigate the case, which the Court cannot allow. It contends that the Arbitrator had wide jurisdiction under the Contract and points to Clause 45.9 of the JBC Contract, which gives the Arbitrator power to open up, review and revise any certificate, opinion, decision, requirement or notice and decide all matters in dispute. That the Arbitrator expressly addressed the scope of his jurisdiction in the Award and found it was not confined to Certificate No. 6 but extended to the entire dispute between the parties.
7. The Respondent claims that the Applicant itself expanded the scope of the arbitration and notes that the Applicant filed a wide-ranging counterclaim covering issues like liquidated damages, demolition costs, additional completion costs, and loss of rent. The Respondent argues it is disingenuous for the Applicant to now complain about the Arbitrator exceeding jurisdiction when the Applicant itself brought many of those very issues before the Arbitrator. That the Applicant waived its right to object under section 5 of the Arbitration Act by actively participating in the arbitration on issues beyond Certificate No. 6 including filing a counterclaim. The Respondent claims that st the Preliminary Meeting on 21 st July 2022 and when directions were issued on 22 nd July 2022, the Applicant raised no objection limiting the Arbitrator’s jurisdiction. The Respondent argues that the Applicant's present objection is an afterthought and that contrary to the Applicant's claim, letters dated 21 st October 2015 and 15 th December 2015 from Steg Consultants raised further disputes beyond Certificate No. 6, including defective works, wrongful termination, demobilization of equipment, and obstruction of site access. That the sufficiency of those notices was a matter decided by the Arbitrator, and the Applicant cannot ask the Court to revisit that factual finding.
8. The Respondent describes the application as a thinly veiled appeal, a stratagem to evade payment, and mischievous and misconceived. That the grounds relied upon by the Applicant fall outside the narrow grounds under section 35 of the Arbitration Act . For these reasons, the Respondent urges the court to dismiss the Applicant's application with costs.
9. It is not in dispute that under section 35 of the Arbitration Act the court has jurisdiction to set aside an Award if it dealt with a dispute not contemplated by or not falling within the terms of the reference to arbitration or contains decisions on matters beyond the scope of the reference to arbitration, provided that if the decisions on matters referred to arbitration can be separated from those not so referred, only that part of the arbitral award which contains decisions on matters not referred to arbitration may be set aside. The Court of Appeal, in Synergy Industrial Credit Limited v Cape Holdings Limited [2020] KECA 208 (KLR) observed as follows:
In determining whether the arbitral tribunal has dealt with a dispute not contemplated or falling within the terms of the reference, or whether its award contains decisions on matters beyond the scope of the reference to arbitration, the arbitral clause or agreement is critical . Other relevant considerations, with-out in any way prescribing a closed catalogue, would include the subject matter, pleadings and submissions by the parties, as well as their conduct in the arbitration. Pleadings, however, must be considered with circumspection because, as the US Court of Appeals for the Ninth Circuit observed in Ministry of Defence of the Islamic Republic of Iran v. Gould, Inc. (supra), the real issue in such an inquiry is whether the award has exceeded the scope of the arbitration agreement, not whether it has exceeded the parties’ pleadings.
10. As this court (Gikonyo J.,) in Kenya Tea Development Agency Ltd & 7 others v Savings Tea Brokers Limited [2015] KEHC 6030 (KLR) expressed itself, the jurisdiction of the arbitrator is tethered by the arbitration agreement, reference and the law. The express words used in the arbitration agreement or as interpreted with reference to the subject matter of the contract will determine whether the issues raised by an applicant are contemplated by the agreement or fall within the terms or scope of the reference to arbitration. Even where general, broad, generous and elastic words are used in an arbitration agreement or reference to arbitration, courts will still interpret them by reference to the subject matter of the contract.
11. Therefore, the Court must begin with the arbitration clause itself. Clause 45.1 uses mandatory language that “ …such dispute shall be notified in writing ” meaning the parties expressly agreed that no dispute would be referred to arbitration unless a written notice setting out the dispute had first been issued. It is common ground that the only written notice issued by the Respondent was the letter dated 30 th September 2015 which notice at clause 3 expressly limited the dispute to "…the contractor's entitlement to certificate for payment." The Respondent issued no further written notice notifying the Applicant of any intention to refer any other dispute to arbitration such as loss of profits, idle construction machinery and tools; extended preliminaries, confiscated machinery and tools; VAT on the additional claims and; termination-related findings.
12. Whereas the Respondent argues that the Applicant waived its right to object by participating in the arbitration and filing a counterclaim, the court rejects that argument for reasons that first, section 5 of the Arbitration Act provides for waiver only where a party proceeds with the arbitration without stating its objection. At paras. 18 and 19 of its Statement of Defence and Counterclaim dated 26 th January 2017, the Applicant expressly objected to the expanded scope of the reference and his objection was repeated in the Amended Statement of Defence and Counterclaim dated 31 st October 2022. Second, the filing of a counterclaim does not constitute a waiver of the right to object to jurisdiction. A party may defend itself against claims brought before the tribunal while maintaining that the tribunal lacks jurisdiction over those claims. This is expressly permitted under the doctrine of kompetenz-kompetenz enshrined in section 17 of the Arbitration Act . Third, the fact that the Applicant did not verbally repeat its objection at the Preliminary Meeting of 21 st July 2022 is not determinative. Having already raised the objection in its written pleadings, the Applicant was not required to reiterate it orally at every subsequent procedural step.
13. The Respondent also relies on Clause 45.9, which grants the Arbitrator power to "… open up, review and revise any certificate, opinion, decision, requirement or notice.. ." This Court finds that Clause 45.9 cannot be read to dispense with the mandatory notice requirement in Clause 45.1. Clause 45.9 allows the Arbitrator to review a notice that was issued. It does not allow the Arbitrator to dispense with the notice requirement altogether. To hold otherwise would render Clause 45.1 superfluous, which is a cardinal sin of contractual interpretation. The Court of Appeal, in Centurion Engineers & Builders Limited v Kenya Bureau of Standards [2023] KECA 1289 (KLR) reaffirmed that an arbitral tribunal's jurisdiction is derived from the arbitration agreement. The parties did not agree to arbitrate claims that were not properly notified. The Arbitrator therefore had no jurisdiction to determine those claims and I further note that in the Award, he found that the parties had waived their right to object by conduct. This Court respectfully disagrees as the Applicant's conduct was consistent with preserving its objection. It raised the objection in its pleadings and maintained the objection throughout. It cannot be said to have waived a right that it actively asserted.
14. Having found that the Arbitrator determined claims that were not properly referred to arbitration, this Court must now consider whether those claims can be separated from the claims that were properly referred. It follows that the claim that was properly referred was the dispute over Certificate No. 6, amounting to Kshs. 10,679,272.52 as awarded by the Arbitrator. The claims that were not properly referred include the Retention Fund where Kshs. 2,939,970.20 was awarded, Idle labour and supervision where Kshs. 577,790.77 was awarded, Idle construction machinery and tools where Kshs. 18,764,160.00 was awarded and Loss of profit where Kshs. 4,478,475.40 was awarded. I find that these claims are separate and distinct from the dispute over Certificate No. 6 and the Arbitrator's awards and findings on these claims can be severed from his decision on Certificate No. 6 without affecting the coherence of the Award.
15. Thus, I find that the Arbitrator's award of Kshs. 10,679,272.52 for Certificate No. 6 is upheld as it was properly within the scope of the reference to arbitration. The Arbitrator's finding that the Respondent is entitled to recover Kshs. 2,684,614.00 from the Applicant on account of unrecovered advance payment is also upheld and so are his dismissals of the Respondent's remaining counterclaims.
16. It is also common ground that the court also has jurisdiction to set aside an award if it goes beyond the public policy of the country. It is not lost to me that a claim that an award is "contrary to public policy" is a high-threshold argument and it has been held that this ground is not a backdoor for appealing the merits of an award. It is reserved for awards that shock the conscience, are inherently immoral, or violate the fundamental principles of justice and morality in Kenya (see Christ for All Nations v Apollo Insurance Co Ltd [2002] 2 E.A 366 and Centurion Engineers & Builders Limited v Kenya Bureau of Standards(supra) ]
17. I have gone through the Award and I find that the same is not in violation of Kenya’s public policy as argued by the Applicant and there is no credible basis to set aside the Award on this ground.This is a commercial dispute between two private companies and no national interest is implicated and the Arbitrator held a full hearing with witnesses, evidence, and submissions and there is no allegation of bribery, forgery, or corruption.
18. On the ground that the Arbitrator delayed releasing the Award by seven months, while this is procedurally unfortunate, delay alone does not violate public policy unless it was deliberate, malicious, or caused prejudice that shocks the conscience. The Applicant has not alleged that the delay was used to manipulate the outcome.
19. In summary, I find that the Award is set aside but only to the extent of to the extent that it determines claims that were not properly referred to arbitration, namely the award of Kshs. 2,939,970.20 for Retention Fund; the award of Kshs. 577,790.77 for Idle labour and supervision; the award of Kshs. 18,764,160.00 for Idle construction machinery and tools; the award of Kshs. 4,478,475.40 for Loss of profit and the interest awarded on the aforementioned sums.
20. Turning to the Respondent’s application to enforce the Award, since the grounds to stop its enforcement are similar to the ones for setting it aside and since I have allowed one of the grounds by the Applicant above, I find that the Award can only be enforced and recognized as a decree of the court to the extent on the findings of Kshs. 10,679,272.52 for Certificate No. 6.
Conclusion and Disposition
21. In the upshot I now make the following final orders:
1) The Final Award by Calvin Nyachoti published on 4 th April 2025 is hereby partially set aside to the extent that it determines claims that were not properly referred to arbitration, namely:
(i) The award of Kshs. 2,939,970.20 for Retention Fund;(ii) The award of Kshs. 577,790.77 for Idle labour and supervision;
(iii) The award of Kshs. 18,764,160.00 for Idle construction machinery and tools;(iv) The award of Kshs. 4,478,475.40 for Loss of profit;(v) The interest awarded on the above sums.
2) The application dated 26 th June 2025 is allowed on the terms that the Final Award by Calvin Nyachoti published on 4 th April 2025 be and is hereby recognised as binding and leave be and is hereby granted to the Respondent, VINAYAK BUILDERS LIMITED to enforce it as a decree of this court to the extent of Kshs. 10,679,272.52 for Certificate No. 6
3) Given that both parties have succeeded in part and failed in part, this Court orders that each party shall bear its own costs of their applications.
DATED SIGNED AND DELIVERED virtually this 15 th DAY OF MAY 2026
............................................................................
J W W MONGARE
JUDGE
IN THE PRESENCE OF
1. Mr. Mugisha for the Applicant- S&M Properties
2. Ms. Joy Anami for the Respondents – Vinayak Builders
3. Amos- Court Assistant
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