https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8650

Jabavu Village Ltd v Mace YMR Ltd Liability Partnership (Miscellaneous Application E083 of 2025) [2026] KEHC 8650 (KLR) (Commercial and Tax) (19 June 2026) (Ruling) Neutral citation: [2026] KEHC 8650 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Miscellaneous Application E083 of 2025 JWW Mong'are, J June 19, 2026 Between Jabavu Village Limited Applicant and Mace YMR Limited Liability Partnership Respondent Ruling 1.On 30th July 2025, the arbitral tribunal, KAMAU KARORI, SC (“the Arbitrator”) published an award where the Applicant was ordered to pay the Respondent Kshs.15,016,542.00/= for an outstanding contract sum, Kshs.9,397,308.08/= in financing charges and Kshs.1,549,467.00/= for the Arbitrator's costs (“the Award”). Through the Notice of Motion dated 22nd October 2025 and supported by the affidavit of its director ABDULKADIR HUSSEIN sworn on the same date, the Applicant seeks to set aside the Award. The application is opposed by the Respondent through the replying affidavit sworn by its partner and director, PETER MUCHIRI NDUNG’U on 12th November 2025. 2.The application has been canvassed by way of written submissions that I haveconsidered together with the pleadings and I will be making relevant references to the same in my analysis and determination below. Analysis and Determination 3.From the pleadings and submissions, the main issue for the court’s determination is whether the Award ought to be set aside. The Applicant claims it was not given proper notice of the appointment of the Arbitrator as it did not receive notices for the first two procedural meetings on 26th March 2024 and 7th June 2024 and that it only learned of the arbitration in July 2024 when it was physically served with the Statement of Claim and the Order for Directions. The Applicant further states that the Award is designed to unjustly enrich the Respondent and is contrary to established principles of law and justice and therefore it is oppressive and offends the public policy of Kenya. 4.The Applicant states that it hired the Respondent for project management services on an affordable housing project but the Respondent abandoned the site on 31st May 2022 and suspended its services without giving the required 7-day notice as stated in their contract. The Applicant believes the Respondent should be liable for cost overruns of Kshs.24,183,412.50/= caused by the improper suspension of services, which was the basis of their counterclaim in the arbitration, a claim that was dismissed by the Arbitrator. For these reasons, the Applicant urges the court to set aside the Award. 5.In response, the Respondent depones that denies the Applicant’s claim that itwas not given proper notice of the arbitrator’s appointment or the procedural meetings. It provides a detailed timeline of service, including letters dated 27th October 2023 and 12th January 2024 declaring a dispute and proposing the Arbitrator, served by registered post and email, a notice of appointment of the arbitrator dated 9th February 2024, served by hand delivery and registered post, the Arbitrator’s acceptance letter dated 12th February 2024, sent by email to the Applicant’s designated addresses, emails and letters regarding the preliminary meetings on 26th March 2024 and 7th June 2024, sent to the email addresses listed in the contract such as abdulkadir@.com, mokase@**.com 6.The Respondent notes that the Applicant only appointed advocates on 9th July 2024, and at that time, did not complain about lack of notice of the earlier directions and it argues that this claim of no notice is false and an afterthought. sections 12(5) and 14(2) of the Arbitration Act, the Applicant had only 14 days from learning of the arbitrator’s appointment to challenge it. Since the Applicant failed to do so and even participated in the arbitration by filing a counterclaim, it waived its right to object under section 5 of the Arbitration Act The Respondent states that under 7.The Respondent asserts that the Applicant is trying to use the court to appeal the Arbitrator’s decision on the facts and law, however, under sections 10 and 39 of the Arbitration Act, the court is prohibited from reviewing or sitting as an appeal court over an arbitral award. That the issues the Applicant raises like who breached the contract were already fully heard and decided by the Arbitrator and that the allegations of violating public policy are baseless. The Respondent denies that the Award was designed to unjustly enrich it or that it offends public policy and that these claims are simply an attempt to have a second bite of the cherry and to obstruct justice by delaying payment of a valid, final, and binding award. As such, the Respondent urges the court to dismiss the application with costs. 8.It is not in dispute that under section 35(2)(a)(iii) and (2)(b)(ii) of the Arbitration Act the court has jurisdiction to set aside an Award if the party making the application 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 if the award is in conflict with the public policy of Kenya. Clause 10 of the parties’ contract provides the manner in which an Arbitrator is appointed and once the appointment is done, I am in agreement with the Respondent that a challenge can only be laid as set out under sections 13 and 14 of the Arbitration Act where the Arbitrator was expected decide on the challenge as a preliminary issue and if either party was dissatisfied by the Arbitrator’s decision, then they were at liberty to apply to this court to hear and determine the matter. A perusal of the record indicates that no such challenge was ever presented to the Arbitrator. 9.Clause 1.3.1(c) of the contract explicitly states that emails will be accepted as a valid system of electronic transmission and the Applicant's own director provided the email addresses abdulkadir@.com and mokase@**.com for communications. The Respondent annexed the letter dated 12th January 2024 proposing the Arbitrator which was sent to the Applicant by email and registered post. The notice of appointment of the Arbitrator dated 9th February 2024 was served by hand delivery and registered post, the Arbitrator's acceptance letter dated 12th February 2024 was emailed to the Applicant's designated addresses and Notices for the procedural meetings on 26th March 2024 and 7th June 2024 were sent via email to the Applicant. The Arbitrator proceeded with the preliminary meeting on 26th March 2024 after noting no communication from the Applicant, and was satisfied service had been affected. The Applicant never denied acceptance these correspondences. 10.Since the Applicant never raised any objection of the Arbitrator’s appointment at the outset of the arbitration, I am in agreement with the Respondent that it is deemed to have waived such an objection in accordance with section 5 of the Arbitration Act . In fact, upon finally receiving physical service of the claim, the Applicant appointed advocates, filed a Statement of Response and a detailed Counterclaim, participated in the hearing, and submitted written submissions. By doing so, the Applicant submitted to the Arbitrator's jurisdiction and this court has always held that a party is estopped from attacking the arbitral proceedings whose jurisdiction it already admitted (see Pillar Palace Limited v Sichuan Huashi Enterprises Corporation E.A Limited & another [2022] KEHC 12927 (KLR)] 11.Therefore, it is my finding that the Applicant was properly served according to the contract and more importantly, even if there was a technical defect, which the evidence disproves, the Applicant waived this right by actively participating in the arbitration without objection and thus, the ground under section 35(2)(a)(iii) that it was not given proper notice of the appointment of the Arbitrator and the arbitral proceedings fails. 12.On the Award being contrary to public policy, the parties agree 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 [2023] KECA 1289 (KLR)] 13.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. The Arbitrator conducted a detailed analysis, heard evidence from both parties including the Applicant's witness and made findings that the Applicant had unpaid invoices, that the Respondent validly issued a 7-day notice of suspension of services via email in accordance with the contract, that the Respondent was not obligated to issue notices to other consultants before suspending its own services and rejected the Applicant's Counterclaim. 14.The Applicant has not pointed to any specific part of the Award that is immoral, illegal, or violates a fundamental principle of our justice system. It simply disagrees with the outcome and I am in agreement with the Respondent that this court, in deciding the merits of an application to set aside an award cannot sit as an appeal and begin interrogating the factual findings of the arbitral tribunal even if the court has a different opinion on those findings. This position was fortified by the Court of Appeal in Kenya Oil Company Limited & another v Kenya Pipeline Company [2014] KECA 851 (KLR) which accepted the position that the arbitrator is the master of facts and cited with approval the decision in Geogas S. A. v Trammo Gas Ltd (“the Baleares”) [1993] 1 Lloyds LR 215 as follows;[40]The court in that case was dealing with an appeal under section 1 of the English Arbitration Act, 1979. It is necessary to quote at length the words of Lord Justice Steyn, who, while addressing the limits of the jurisdiction of the court hearing an appeal under that Act, had this to say:The arbitrators are the masters of the facts. On an appeal the court must decide any question of law arising from an award on the basis of a full and unqualified acceptance of the findings of fact of the arbitrators. It is irrelevant whether the court considers those findings of fact to be right or wrong. It also does not matter how obvious a mistake by the arbitrators on issues of fact might be, or what the scale of the financial consequences of the mistake of fact might be. That is, of course, an unsurprising position. After all, the very reason why parties conclude an arbitration agreement is because they do not wish to litigate in the courts. Parties who submit their disputes to arbitration bind themselves by agreement to honour the arbitrators’ award on the facts. The principle of party autonomy decrees that a court ought never to question the arbitrators’ findings of fact......---------------(41)---------- Lord Justice Steyn went on to emphasize the need for the court to be constantly vigilant to ensure that attempts to question or qualify the arbitrator’s finding of fact, or to dress up questions of fact as questions of law, are carefully identified and firmly discouraged. 15.It is therefore my finding that the Applicant has failed to meet the high threshold required to set aside an Award on public policy grounds. Conclusion and Disposition 16.In the upshot, the Applicant’s application dated 22nd October 2025 is dismissed with costs assessed at Kshs.25,000.00/= with costs being the cause. DATED SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 19TH DAY OF JUNE 2026................................................................J.W.W. MONGAREJUDGEIn The Presence OfMr. Amwama holding brief for Mr. Kiprop for the Applicant.Mr. Olala holding brief for Mr. Litoro for the Respondent.Amos- Court Assistant2 | Page