https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8482

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **COMMERCIAL AND ADMIRALTY DIVISION** **HCCOMM ARB. NO. E021 OF 2025** **IN THE MATTER OF AN ARBITRATION** **BETWEEN** **HIMS HOMES LIMITED…………………………………..…..APPLICANT** **AND** **MARTIN LEMAIYAN MOKOOSIO……………………….RESPONDENT** **ANGELA MULWA** **T/A MULWA & PARTNERS ADVOCATES…...INTERESTED PARTY** **RULING** 1. This ruling determines the Applicant’s Notice of Motion dated 19th March 2025 brought under Section 1A, 1B, 3A & 63 of the Civil Procedure Act Cap 21 Laws of Kenya; Order 46 Rule 16 of the Civil Procedure Rules, 2010, Order 51 rule 1 of the Civil Procedure Rules, 2010, Sections 35(2)(b) and 35(2)(a) of the Arbitration Act, Rule 9 of the Arbitration Rules,1997, Article 159 & 10 of the Constitution of Kenya, 2010; and all other enabling provisions of the law. The applicant seeks the following orders: 2. *An order setting aside the final arbitral award published on 20th December 2024 by Mr. Collins Namachanja, the Sole Arbitrator.* 3. *An order directing that the matter be heard and determined by any other Judge of the Commercial and Admiralty Division, except Hon. Lady Justice Dr. Freda Mugambi and Hon. Lady Justice J.W.W. Mong’are.* 4. *Costs be borne by the Respondent.* 5. The application is supported by the affidavit of Rose Mulwa (Director of the Applicant) sworn 19th March 2025. The Respondent filed grounds of opposition dated 5th November 2025 and the replying affidavit of Martin Leimaiyan Mokoosio, sworn on the same date. I directed written submissions. Only the Respondent filed submissions dated 16th February 2026. I have considered the motion, affidavits, grounds, submissions and the authorities cited. **Background** 1. The dispute arises from a Joint Venture Agreement dated 19th March 2013 for development of housing units. The Applicant contends it performed and that the Respondent thereafter repudiated obligations, withheld completion documents, attempted to alter agreed terms and disrupted development. The Respondent proceeded to appoint a sole arbitrator on 8th June 2023 under Section 12(4) of the Arbitration Act. The Applicant alleges the appointment and subsequent proceedings were unilateral, conducted ex parte, and tainted by bias; the final award was published on 20th December 2024. 2. The Respondent maintains that notices of proceedings were served, that the Applicant was aware but abstained from participation, that statutory remedies were available and not pursued, and that the application is an abuse of process and statute‑barred. **Analysis and determination** 1. I have considered the application, the affidavits filed by the parties, the grounds of opposition and the Respondent’s submissions. In my view, the following issues arise for determination: 1. *Whether this Court has jurisdiction to entertain the application in light of Section 35(3) of the Arbitration Act;* 2. *Whether the Applicant has established any of the grounds for setting aside the arbitral award under Section 35(2) of the Arbitration Act; and* 3. *Who should bear the costs of the application.* 2. **Section 35(3)** of the **Arbitration Act** provides that: ***“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.”*** 1. The wording of the provision is couched in mandatory terms and reflects the statutory policy of finality in arbitration. In **Anne Mumbi Hinga v Victoria Njoki Gathara [2009] eKLR** the court held that the Arbitration Act constitutes a complete code, and courts cannot enlarge statutory periods. 2. The award impugned is dated and published on 20th December 2024. The Notice of Motion bears the date 19th March 2025 and was filed on 20th March 2025. On the face of it the application falls within the three‑month period prescribed by Section 35(3). The Respondent’s preliminary objection on limitation, therefore, fails. 3. Notwithstanding timeliness, the Applicant conspicuously failed to annex the final arbitral award sought to be set aside. What is annexed to the papers is Interim Award No. 1 dated 18th December 2024, but not the final award of 20th December 2024. 4. The arbitral award is the foundational document in an application under Section 35, and its terms determine whether any statutory ground for setting it aside exists. Courts have repeatedly held that an application to impugn an arbitral award must exhibit the award itself and absence of the award is fatal. (See **University of Nairobi v Multiscope Consultancy Engineers Ltd [2020] eKLR**). 5. The omission to place the impugned award before the Court is not a curable technicality. It deprives the Court of the capacity to evaluate the veracity and sufficiency of the grounds relied upon and to identify precisely which aspects of the award are alleged to offend Section 35(2) or public policy. For that reason alone, the application is incompetent and liable to be dismissed. 6. Even if the Court were minded to overlook the failure to annex the award, the Applicant has not established any of the narrow grounds under Section 35(2) of the Arbitration Act. The Act circumscribes judicial intervention. Section 10 expressly provides that: ***“Except as provided in this Act, no court shall intervene in matters governed by this Act.”*** 1. In **Cape Holdings Ltd v Synergy Industrial Credits Ltd [2016] eKLR** the Court held that: **“*The Court cannot therefore go to the merits or otherwise of the Award when dealing with an application under Section 35 of the Act as this Court is not sitting on an Appeal from the decision of the Arbitrator when considering whether or not to set aside the award.”*** 1. The Applicant alleges unilateral appointment, ex parte proceedings, denial of a hearing and bias. The record before me, however, discloses that the sole arbitrator was appointed on 8th June 2023 pursuant to Section 12(4), after the Applicant failed to participate in the appointment process. 2. **Section 14(2)** of the Act provides: ***“Failing an agreement under subsection (1), a party who intends to challenge an arbitrator shall, within fifteen days after becoming aware of the composition of the arbitral tribunal or after becoming aware of any circumstances referred to in section 13 (3), send a written statement of the reasons for the challenge to the arbitral tribunal, and unless the arbitrator who is being challenged withdraws from his office or the other party agrees to the challenge, the arbitral tribunal shall decide on the challenge.”*** 1. The Applicant previously challenged the appointment before the tribunal and in earlier High Court proceedings but either did not pursue statutory remedies to conclusion or withdrew proceedings. The doctrine of waiver and estoppel applies. A party who knowingly elects not to pursue available remedies cannot, after an adverse award, re‑open matters. There is no cogent evidence that notices were not served. On the contrary, the Respondent positively avers service and the Applicant’s deliberate non‑participation. 2. The allegation of bias is pleaded in general terms but is unsupported by particulars or evidence demonstrating actual bias or circumstances giving rise to a reasonable apprehension of bias. The Applicant’s broad dissatisfaction with the outcome does not equate to a statutory ground under Section 35(2)(a) or (b). Likewise, the contention that the award offends public policy is entirely unparticularized. Mere disagreement with an award is not public policy. The Applicant has therefore failed to prove any of the limited statutory grounds for setting aside. 3. The Applicant seeks an order that the matter be assigned to any Judge of the Commercial & Admiralty Division except two named judicial officers. No facts or legal basis was advanced to justify such an order. Allegations warranting recusal of a judicial officer demand cogent proof of bias or a reasonable apprehension of bias. None has been presented. The prayer for exclusion of specific judges is therefore without foundation and is refused. 4. For the foregoing reasons, I find that the Applicant has failed to establish any of the grounds set out under Section 35(2) of the Arbitration Act for setting aside the arbitral award. The application is devoid of merit. 5. Consequently, the Notice of Motion dated 19th March 2025 is hereby dismissed with costs to the Respondent. Orders accordingly. **RULING** delivered virtually, dated and signed at **NAIROBI** This **11th** day of **June** 2026. **P.M. MULWA** **JUDGE** **In the presence of:** *Mr. Wesonga* for Respondent Court Assistant*: Lispa*