[2023] KEHC 1680 (KLR)

Insurance Training & Education Trust t/a College of Insurance v Orange Works Limited (Arbitration Cause E032 of 2022) [2023] KEHC 1680 (KLR) (Commercial and Tax) (27 February 2023) (Ruling)

Neutral citation: [2023] KEHC 1680 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Arbitration Cause E032 of 2022

PN Gichohi, J

February 27, 2023

Between

Insurance Training & Education Trust T/A College Of Insurance

Applicant

and

Orange Works Limited

Respondent

Ruling

1. Through firm of Ndungu Njoroge & Kwach Advocates, the applicant filed chamber summons dated September 23, 2021 and brought under section 36 (1) of the Arbitration Act No 4 of 1995, Rule 4 (1), (2), 6, 9 and 11 of theArbitration Rules 1997 seeking orders that the Final Arbitral Award by the sole Arbitrator Dominic N Mbigi, made, issued and published on April 30, 2021 be recognised as binding and thus adopted as the judgment of this court. Further, he seeks leave to enforce the said Award as the decree of this court. Lastly, he asks to be awarded the cost of this application and expenses incidental to the enforcement and execution of the Final Award.

2. That application is supported by the affidavit sworn by Abiud Omwenga Ogechi on September 23, 2021 as the head of ICT at College of Insurance. He has attached a copy of consent authorising Abiud Omwenga Ogechi to swear affidavit in support of the claim and testify on behalf of College of Insurance.

3. He states that the respondent has not appealed against the Award within 30 days of receipt of the Award that is on July 4, 2021and has not filed an application for setting aside of the final Award within 90 days from the date of receipt of the said Award which is by September 4, 2021.

4. He further states that counsel for the applicant had previously written to settle the Arbitral Award but the respondent never gave a substantial response within reasonable time. Further, he states, the respondent had sufficient time to determine if he accepts the Final Award or not and therefore, the application will not prejudice the respondent.

Submissions 5. In their submissions dated January 20, 2023, counsel for the applicant emphasises the provisions of Section 36 of the Arbitration and urges the court to recognise and adopt the ward as prayed. Further, while relying on the case ofLalji Meghji Patel & Co Limited v Nature Green Holdings Limited [2017]eKLR where High Court emphasised on the grounds of setting aside of an arbitral award as provided for under Section 35 of the Arbitration Act 1995, counsel submits that there is no competent application made by the respondent and that this application is unchallenged. He believes that the Award made by the Arbitrator was fair and reasoned and hence this application should be allowed.

6. Counsel further urges the court to award the applicant the costs of the application and an order that expenses incurred to the enforcement and execution of the Final Arbitral Award be borne by the respondent.

Determination 7. I have considered the application, the affidavit in support together with the annextures thereto as well as the submissions herein. I have also perused the Final Award herein and the background thereof is that the parties herein had entered into a software agreement on April 28, 2015 for the respondent’s provision of resources suitable for the development and implantation of Orange Works Software with functional specifications and costs identified in a proposal for College of Insurance dated March 17, 2015 and on various terms and conditions. The agreement was to be governed by the laws of Kenya.

8. Further, the agreement provided that:-“In the event that a dispute arises out of the or relating to this Agreement, the parties agree to participate in mediation process. Representatives of the parties shall meet at least once and will attempt in good faith to resolve the dispute. For such purpose, either party may request the other to meet within fifteen (15 days) in a mutually agreed upon time and place. If the parties are not able to conduct a meeting within the said fifteen (15) day period or to resolve the dispute within thirty (30) days after their first negotiating meeting , then upon notice by either party to the other, all disputes , claims , questions or differences shall be finally settled by the Kenyan Branch of the Chartered Institute of Arbitrators in accordance with the provisions of the Arbitration Act.”

9. Apparently, the respondent herein was paid Ksh 445,440/- as initial deposit out of the agreed sum of Ksh 890,880 /- payable and the balance payable in two in two equal instalments, one upon completion and the other after the warranty expired. The Respondent failed to deliver the software and to refund the sum of Ksh 445,440/ to the Applicant herein. A dispute indeed arose between the parties and upon the Applicant’s application to the Chartered Institute of Arbitrators , Dominic N Mbigi was appointed as Sole Arbitrator. The dispute was heard leading to the Final Award, the subject of this ruling, where the Arbitrator found the Respondent in breach of the contact of the agreement but dismissed the claim for damages for the said breach. He awarded applicant (claimant) :-1. Ksh 445,440/- being refund of the deposit.2. Ksh 70,136/- being costs of the Arbitration proceedings.3. Ksh 179,550/- being arbitrator’s fees.4. Ksh 15,000/- being the Chartered Institute of Arbitrator’s , Kenya Branch arbitrator appointment fees.5. Interest on the said total sum of Ksh 710,126/- at the rate of 12% p.a.

10. Section 36 of the Arbitration Act provides: -(1)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. (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.(4)….(5)….”

11. The respondent was duly served but neither attended court nor filed any response and there is no opposition under Section 37 of the Arbitration Act hence the finality of the Arbitral Award herein. I therefore find the Applicant’s application merited. It is allowed in the following terms: -1. The Final Arbitral Award by the sole Arbitrator Dominic N Mbigi, made, issued and published on April 30, 2021 be and is hereby recognised and adopted as the judgment of this court.2. Leave is granted to the applicant to enforce the Award as a Decree of this court.3. The applicant is awarded the cost of this application and expenses incidental to the enforcement and execution of the Final Award.

Orders accordingly.

DATED, SIGNED AND DELIVERED VIRTUALLY AT KISII THIS 27TH DAY OF FEBRUARY, 2023. PATRICIA GICHOHIJUDGEIn the presence of:Ms. Gatuhi for ApplicantN/Attendance by RespondentKevin Isindu, Court Aassistant