Matere v Simple Pay Capital Ltd (Miscellaneous Civil Application E075 of 2025) [2026] KEHC 10213 (KLR) (Commercial and Tax) (2 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **COMMERCIAL & TAX DIVISION (COMMERCIAL & ARBITRATION)** **MISC. CIVIL APPLICATION NO. E075 OF 2025** **BETWEEN** **EDWIN MAINA MATERE...........................................................APPLICANT** **AND** **SIMPLE PAY CAPITAL LIMITED..............................................RESPONDENT** **RULING** **Introduction** 1. Before the Court are two applications. The first is the **Chamber Summons dated 28th August 2025** by which the Applicant seeks recognition and enforcement of the Final Arbitral Award made by **Hon. James Githu** on 11th July 2025 pursuant to sections 36(1) and 36(3) of the Arbitration Act. The Applicant also seeks entry of judgment in terms of the award and leave to enforce it as a decree of this Court. 2. The second application is the **Notice of Motion dated 5th December 2025** seeking an injunction restraining the Respondent from transferring, advertising, auctioning or otherwise disposing of Motor Vehicle Registration No. KDJ 690H pending the determination of the enforcement proceedings. 3. The Applications are supported by the affidavits of Edwin Maina Matere, sworn on **28th August 2025** and **5th December 2025**, respectively. 4. The applications arise from a loan agreement executed by the parties on 25th August 2023 under which the Respondent advanced the Applicant **Kshs. 750,000** secured by **Motor Vehicle Registration No. KDJ 690H.** The agreement contained an arbitration clause. Following the Applicant's default in repayment, a dispute arose which was referred to arbitration pursuant to a ruling of this Court delivered on 30th July 2024. The arbitral tribunal rendered its Final Award on 11th July 2025. 5. The award directed the Applicant to settle the outstanding loan arrears and auctioneer's charges within sixty (60) days, required the Respondent to waive interest accruing between the date of impoundment and the date of the award, directed release of the motor vehicle upon payment and, in default of payment, authorised the Respondent to auction the vehicle to recover the outstanding debt. 6. The Applicant contends that he substantially complied with the award by making payments towards the outstanding indebtedness and paying arbitral costs on behalf of the Respondent. He maintains that the Respondent nevertheless failed to release the motor vehicle, relocated it to an undisclosed location and subsequently initiated its transfer notwithstanding the pending enforcement proceedings. He therefore seeks recognition of the award together with interim preservation orders. 7. The Respondent opposed both applications through the Replying Affidavit dated **11th March 2026**, and Further Replying Affidavit dated 24th April 2024, both sworn by **Madline Asilutwa** on behalf of the Respondent. 8. The Respondent maintained that the Applicant failed to comply with the award within the stipulated period by settling neither the loan arrears nor the auctioneer's charges. It contends that after allowing the Applicant additional time beyond the sixty days stipulated in the award, it lawfully exercised the liberty granted by the tribunal by auctioning the motor vehicle on 20th November 2025. It therefore submits that the application for injunction has been overtaken by events, while the enforcement proceedings serve no practical purpose. **Analysis and Determination** 1. I have carefully considered the two applications, the responses thereto, and the rival submissions by the parties. I find that the dispute turns on two issues: 2. Whether the Application dated 28th August 2025 meets the threshold for recognition of an arbitral award 3. Whether the Applicant is entitled to the interlocutory injunction sought in the application dated 5th December 2025. **Whether the threshold for recognition of an arbitral award has been met** 1. The Arbitration Act reflects a deliberate legislative policy of minimal court intervention in arbitral proceedings. Section 10 provides that except as provided in the Act, no court shall intervene in matters governed by the Act. Once an arbitral tribunal has rendered its award, the Court's role at the enforcement stage is confined to the grounds expressly set out in sections 36 and 37. 2. The Applicant, in the application dated 28 August 2025, seeks recognition and enforcement of the arbitral award pursuant to sections 36(1) and 36(3) of the Arbitration Act. 3. The award was rendered by **Hon. James Githu, MCIArb**, after an arbitration arising from a loan agreement containing an arbitration clause, and directed, inter alia, payment of loan arrears within sixty (60) days, waiver of interest during the period of impoundment, payment of auctioneer's charges, release of the motor vehicle upon compliance, and, in default, permitted sale of the vehicle by the Respondent. 4. Section 36(1) of the Arbitration Act provides that “a domestic arbitral award shall be recognised as binding and, upon application in writing to the High Court, shall be enforced subject to this section and section 37." 5. The Court's role at the recognition stage is therefore limited. The Court is not sitting on appeal against the merits of the award. It cannot re-open factual or legal findings made by the arbitrator merely because one party is dissatisfied with them. This limited role of the Court is captured under Section 10 of the Arbitration Act in the following terms: "Except as provided in this Act, no court shall intervene in matters governed by this Act." 1. The Supreme Court in **Nyutu Agrovet Ltd v Airtel Networks Kenya Ltd & Another [2019] eKLR** emphasized that courts should be slow to interfere with arbitral proceedings and awards lest they undermine the fundamental objective of arbitration, namely finality and party autonomy. The Court stated that judicial intervention in arbitral matters must remain exceptional. 2. The Court of Appeal in **Anne Mumbi Hinga v Victoria Njoki Gathara [2009] eKLR** reiterated that the Arbitration Act is intended to uphold the finality of arbitral awards and to restrict judicial intervention. 3. Similarly, in **Christ for All Nations v Apollo Insurance Co. Ltd [2002] EA 366**, Ringera J. observed that Kenyan public policy leans strongly in favour of the finality of arbitral awards and that parties who choose arbitration must ordinarily accept the resulting award subject only to the limited statutory avenues of challenge. 4. In the present case, the Respondent opposes enforcement on the basis that the Applicant allegedly failed to comply with the award, failed to settle the entire arrears and auctioneer's charges within sixty days, and that the motor vehicle was subsequently sold pursuant to the award. 5. Those objections raised by the Respondent do not, however, fall within any of the grounds for refusal of recognition and enforcement set out under section 37 of the Arbitration Act, which permits refusal of recognition only where, among other matters, a party was under incapacity; the arbitration agreement was invalid; proper notice was not given; the award dealt with matters beyond the reference; the composition of the tribunal was improper; or, where enforcement would be contrary to public policy. 6. The Court is not sitting on appeal over the arbitral award. Whether the Applicant correctly interpreted the award, whether he was entitled to set off certain payments, or whether the Respondent properly exercised its rights under the award are not questions falling for determination under sections 36 and 37. Those are matters concerning the execution of the award. They do not affect its validity. 7. Further, evidence on record demonstrates that it had filed proceedings challenging the award under section 35, but those proceedings were withdrawn. 8. The award, therefore, remains valid, binding, and unchallenged. 9. Accordingly, I find that the present application for recognition and enforcement of the arbitral award dated 11th July 2025 by **Hon. James Githu** merited. **Whether the application dated 5 December 2025 is merited** 1. The Applicant seeks an injunction restraining the Respondent from selling, transferring, advertising for sale, auctioning or otherwise disposing of Motor Vehicle Registration No. KDJ 690H pending the hearing and determination of the Chamber Summons seeking recognition and enforcement of the arbitral award. 2. The Respondent’s argument, on the other hand, argues that the application has been overtaken by events as the vehicle was lawfully auctioned on 20th November 2025, long before 5th December 2025, pursuant to the liberty granted under the arbitral award after the Applicant failed to settle the outstanding loan arrears and auctioneer's charges within the sixty days stipulated by the tribunal. It therefore argues that there is nothing left to preserve. 3. The Court is, however, of the considered view that the arbitral award having been recognized, the Court must, of necessity, ensure that its orders are not rendered nugatory. Recognition under section 36 of the Arbitration Act is intended to facilitate enforcement of an arbitral award. Interim relief may therefore issue where it is necessary to preserve the efficacy of the Court's eventual decree. 4. The Court takes cognizance of the Respondent's principal contention that the sale had already taken place. However, whether that sale was undertaken strictly in accordance with the arbitral award, whether an account was rendered to the Applicant herein, and whether any rights passed to a purchaser are matters that cannot be conclusively determined on the affidavit evidence presently before the Court, but are substantive questions that may arise in subsequent enforcement or execution proceedings and, if necessary, in proceedings involving the purchaser. 5. In any event, no evidence has been presented by the Respondent demonstrating that transfer or vesting of the subject motor vehicle on the alleged purchaser has, in fact, been completed. This can still be subject to an injunctive order. 6. In the circumstances, I am satisfied the balance of convenience lies in maintaining the prevailing position so that the Court could effectively determine the parties' rights arising from the arbitral award. **Disposition** 1. Accordingly, I allow the applications and make the following orders: 2. The Chamber Summons dated 28th August 2025 is allowed, and the Arbitral Award published on 11th July 2025 by Hon. James Githu, MCIArb is hereby recognised and adopted as a judgment of this Court pursuant to section 36 of the Arbitration Act. 3. Leave is granted to enforce the Award in accordance with the Arbitration Act. 4. Pending execution and satisfaction of the decree, an injunction is hereby issued in terms of prayer 2 of the Notice of Motion dated 5th December 2025, restraining the Respondent, whether by itself, its servants, agents, assigns, or any person acting under its authority, from transferring, advertising for sale, disposing of, or otherwise dealing with Motor Vehicle Registration No. KDJ 690H. 5. The Applicant shall have the costs of both the Chamber Summons dated 28th August 2025 and the Notice of Motion dated 5th December 2025. 6. It is so ordered **DATED, SIGNED, AND DELIVERED AT NAIROBI THIS 2ND DAY OF JULY 2026** **** **HON. MR. JUSTICE MOSES ADO *Judge of the High Court*** **In the Presence of:** *Moses C/A* *……………… for the Applicant* *……………for the Respondent*