https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9562

Wangari v Kitisuru Spur Apartments Ltd (Miscellaneous Application 1276 of 2025) [2026] KEHC 9562 (KLR) (Civ) (25 June 2026) (Ruling) Neutral citation: [2026] KEHC 9562 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Miscellaneous Application 1276 of 2025 JN Mulwa, J June 25, 2026 Between Judy Peris Wangari Applicant and Kitisuru Spur Apartments Limited Respondent Ruling 1.There are two Chamber Summons applications before the court for determination. The first summons was filed on 1/09/2025 by Judy Peris Wangari (hereafter Judy). She seeks recognition and enforcement of the Arbitral Award made and published on 15/08/2025 as a decree of the court. 2.The second Chamber summons was brought by Kitisuru Spur Apartment Limited (hereafter Kitisusu Spur) dated 14/10/2025 seeking an order to set aside the Arbitral award made and published on 7/10/2025. 3.In the course of proceedings, the parties agreed that the two summons be heard and determined together as they are two sides of the same coin, by way of written submissions. They have complied accordingly. 4.In the court's opinion it is prudent that the second summons dated 14/10/2025 whereof the Kitusuru Spur seeks to set aside the Arbitral Award be determined first as the its outcome may determine the way forward for the first summons. It is also noted that the 2nd summons is basically opposing grant of reliefs sought in the first summons. I shall therefore proceed to determine the twin summons on that understanding. Chamber Summons dated 14/10/2025 by Kitisuru Spur 5.It is predicated on provisions of Section 35(2) and Section 40 of the Arbitration Act.The Applicant seeks an order that the Arbitral Award published on 15/08/2025 by Mr. William C. Githura, the sole Arbitrator be set aside and the dispute be referred to the Chartered Institute of Arbitrators Kenya Branch for appointment of another arbitrator. It is predicated upon grounds stated at its face and supporting affidavit sworn by one Patricia Wairimu describing herself as the Relationship Manager of the Applicant. 6.Kitisuru Spur’s case is that the Arbitrator acted ultra vires by awarding interest on the principal sum from 1/11/2022 yet the claimant had not filed the reference as it was filed on 10/01/2025. That Judy the claimant failed to serve completion/default notice in terms of clause 10.2 of the parties agreement, that the Arbitrator ought to have awarded interest as per the agreement. 7.In opposition to the summons, Judy the Claimant via her Advocates, D. K. Githinji & Co. Advocates filed grounds of opposition dated 3/11/2025 and Replying Affidavit sworn on 7/10/2025 wherein it is deponed that the stated supporting grounds are not anticipated under Section 35 as read with Section 10 of the Arbitration Act. 8.That the court has no jurisdiction to intervene on questions of interest as framed, neither can it impugn the arbitrators interpretation of the contract as both are questions of law and fact; that the law anticipates finality of the arbitral tribunal on questions of law or fact; and that the court ought not re-write the agreement between the parties. Kitusuru Spur Submissions on Chamber Summons Dated 14/210/2025 9.Its submissions are dated 3/11/2025. Counsel submits on both summons for recognition and enforcement of the arbitral award. Here the court will flag the submissions on the setting aside application in the first instance as rationalized above. 10.On the question as to when interest on the principal sum would start to accrue, it is submitted that the arbitrator acted ultravires by suggesting the date, 10/01/2025 which is said to be factually incorrect as at 7/10/2025, no application to set aside the award had been filed, that the dispute was referred to arbitration on 24/10/2024 and therefore no consistency in the events and dates thereto citing Section163 of the Evidence Act as to impeachment and or credibility of a witness, calling to aid decision in Simon Kariuki Nguruka v. Francis Njue Kiura [2019] eKLR, it is urged that a court ought not ascribe probative value to contradictory evidence. 11.On issue of re-writing the parties agreement, it is submitted that a court can refuse to recognize an award only under grounds found at Section 37 of the Act , citing decision in Lalji Mgliji Patel & Co. Ltd v. Nature Green Holdings Ltd [2017] eKLR; and that a party can only appeal on a question of law if there had been a prior agreement during the arbitration process - Section 39(1) of the Act. 12.It is further submitted that the Arbitral Award ought not to be interfered with citing Section 10 of the act that provides that no court should intervene in matters governed by the Act, that as held in Anne Mumbi Hanga v. Victoria Njoki Gathara [2009] eKLR, that interference is restricted to circumstances stated at Section 39 therein. 13.Additionally, it is submitted that the matter of interest was agreed by the parties in their agreement, as well as the principle sum being Kshs. 8,200,000/- which is not contested; that interest is also governed by Section 35(c) and therefore Kitusuru Spur objection to recognition of the Final Arbitral Award should be dismissed with costs. 14.At the time of preparation of this ruling, J. K. Mwangi & Co. Advocates for Judy had not filed submissions on the twin summons. Analysis and Determination 15.The court has considered the parties pleadings, affidavit material and submissions upon which issues for determination have been postulated, to wit;1.Whether Kitisuru Spur Apartments Limited has met the threshold for setting aside the Final Arbitration Award made and published on 15/08/2025.2.If the answer to (1) above is in the affirmative, whether the said Arbitral award should be recognized and enforced as a decree of this court.3.Who bears the costs of the twin applications? 16.Section 35 of the Arbitration Act underpins the grounds for setting aside Arbitral Awards.Sections 35(2) provides;-An Arbitral Award may be set aside by the High Court only if:-a.The party making the application furnishes proof;-i.That a party to the Arbitration Agreement was under some incapacity ; orii.The Arbitration Agreement is not valid under the law to which the parties have subjected it to, failing any indication of that law, the laws of Kenya, Arbitration CAP 49.iii.The party making application was not given proper notice of Application for setting aside the arbitral award.iv.The making of the award was induced or affected by fraud, bribery, undue influence or corruption.b.The High Court finds thati.The subject matter of the dispute is not capable of settlement by arbitration under the law of Kenya.ii.The award is in conflict with the public policy of Kenya (emphasis mine) 17.Here, in my considered estimation, Kitisuru Spur seeks to set aside the arbitral award on two main grounds; effective date when interest on the principal sum of Kshs 8,200,000/- ought to accrue; and failure of Judy to serve default notice on completion of the project. 18.I have perused the Agreement for sale between the two parties dated 15/09/2022. I have also considered the mandate of the sole Arbitrator, Mr. William C. Githara, FCIArb, appointed by the Chairman of the Association, over the dispute between Peris Judy Wangari vs. Kitsuru Spur Apartment Limited on 11/11/2024.The arbitrator's mandate and terms of reference are stated and agreed by all parties. 19.Of relevance here is stated at par. 6- that the arbitration will be conducted in accordance with the Arbitration Act, 1995; that the Arbitrator shall have all powers given to Arbitrators by the said Act. 20.The Award is provided as an annexure (DKG-7). The dispute is grounded on claim for non-completion and handover of apartment C-103 purchased by Judy as per the agreement, to wit, was formalized by a new agreement between the parties dated 15/09/2022, in which Judy finalized payment to the Respondent on 30/09/2022, but by the completion period (1/10/2022), the apartment had not been completed for handover – (Par. 28-30). 21.It is the Judy's case that she issued a formal completion notice dated 23/08/2024, giving the Kitisu Spur 30 days to fulfil its contractual obligation under the agreement. She further claims that as a result, she suffered loss of rental income, thereby seeking reliefs as stated at (par d-f) with interest at 14% pa from date of the award to payment in full. 22.Upon hearing the dispute whereupon each party’s witness testified, the Arbitrator made the following award and disposition ( par. 7.0);1.Respondent to pay within 14 days of award Kshs. 8,200,000/- being refund of purchase price paid to the Respondent by the Claimant.2.Respondent shall pay, within 14 days, interest to Claimant on the principal amount at 12% pa from 1/11/2022 until payment in full.3.Respondent to pay to Claimant costs of reference assessed at Kshs. 479,283/-4.Respondent to pay to Claimant reimbursement Kshs. 563,180/= being amount paid by Claimant towards Arbitrators fees and expenses incurred.5.Sums paid at 3 & 4 above to be paid within 14 days, failing which the same shall attract interest at 14% from 1/09/2025 until payment in full. 23.With the above in reserve, and being guided by the Kitisuru Spur’s grounds for setting aside the Arbitrators Award, and the parties pleadings and submissions, I now proceed to interrogate the arbitrator’s findings, on the questions under review, being interest on the awards stated at par. 84, page 23 of the Final and interest on the refunded purchase price, par. 88 page 26 for which the Arbitrator found no basis for the claim, and dismissed it. 24.As garnered from the arbitrator's award, the rationale behind the dismissal is captured at par. 94, whereof the Arbitrator cited Section 32 C of the Arbitration Act wherein an arbitrator is granted power to award interest where appropriate, from date of accrual until payment in full. Here the date of accrual by the Arbitrator was stated as date of the Award, 15/08/2025. 25.The above, as I garner is what was agreed upon at clause 10.2, that refund of purchase price within 14 days, if there is default. However, as stated at par. 97, page 27, if refund was made within 14 days, the claimant would not be entitled to any other remedy. Here, the question is whether the Respondent- Kitisuru Spur complied by payment of the purchase price within the 14 days. It is evident that the refund was not made within the 14 days of default. 26.For the 2nd ground, default on completion notice. I note from the new agreement between the parties that a default notice was duly issued by the Judy-Claimant to the Contractor, on 23/08/2024. The apartment was not completed despite the completion notice.What the arbitrator found on this issue is that the completion time of the apartment had been extended twice yet the apartment had not been completed. It is therefore not in dispute that the contractor and by extension Kitisuru Spur failed to comply with the terms of the agreement, did not offer the purchase price back nor attempted to complete the apartment – par. 103, pag 28-29.That said, I concur with Judy in the motion under review, that indeed Kitisuru Spur and its contractors breached all the terms of the agreement. 27.On whether the Arbitrator acted ultra vires, Section 35(2) (iv) of the Act demands that the party making the application to set aside an Arbitral Award must furnish proof, and bears the burden of satisfying the court that the Tribunal determined the dispute not on contemplated issues and amplified in the case of APA Insurance Col Ltd v. Barnabas Okemo [2005] eKLR. Here, the court determined that evaluation and admissibility of evidence of a witness is a role of the Arbitrator as so empowered at Section 3(c) of the Act. 28.The burden of proof lay upon the Respondent-Kitisuru Spur to adduce proof that the Arbitrator decided matters beyond his mandate, to wit, the Respondent failed in this regard. Section 107-109 of the Evidence Act speaks to that regard. 29.Section 39(1) of the Arbitration Act provides:-a.An application by any party may be made to a court to determine any question of law arising in the course of the arbitration; orb.An appeal by any party may be made to a court on any question of law arising out of the award to the High Court.Under the above provision the High Court may only determine issues of law only, arising from arbitration proceedings as held in Kilimanjaro Oil Company [2025] KEHC 6763[KLR]. 30.It is trite therefore that a court will only intervene in the arbitral process specifically on situations set out in the Arbitration Act, as may have been agreed upon by the disputant parties – as held in the Court of Appeal in Nyutu Agrovet Limited v. Airtel Networks Ltd [2015] KECA 1012 [KLR]. 31.Kitusuru Spur in the instant summon seeks an order of setting aside the Arbitral Award, with a rider that the dispute be referred to the Chartered Institute of Arbitrators for appointment of another arbitrator; yet the it has not stated any ground, or offered any proof, that the Arbitrator misconducted himself, was biased or did not comply with his professional code of conduct. The court will not act in a vacuum. Without fault being proved, it will not sustain its demands. 32.Arbitral Awards shall not be interfered with upon light grounds. The Court of Appeal in Oilfields Engineering & Supplies Ltd made the following observations;…….that as a general rule, arbitral awards should not lightly be interfered with by the courts.Indeed, Section 10 of the Arbitration Act captures the philosophy in the most explicit terms, that-“Except as provided in this Act, no court shall intervene in matters governed by this Act….” 33.Having rendered myself as above, in the issues before the court, I come to the conclusion that the Applicant-Kitisuru Spur Apartment Ltd has not met the threshold for setting aside the Arbitral Award made and published on 15/08/2025, with the result that the Kitisuru Spur’s Chamber Summons dated 14/10/2025 is hereby dismissed for lack of merit. Chamber Summons dated 1/09/2025 filed by Judy Peris Wangari 34.Here, Judy seeks orders that the Final Arbitral Award made and published on 18/05/2025 by the sole Arbitrator be recognized as binding between the parties and be enforced as a decree of the court. 35.Section 36 of the Arbitration Act provides for recognition and enforcement of awards thus:-1.A domestic arbitral award shall be recognized as binding and upon application in writing to the High Court shall be enforced subject to this section and section 37.2.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, andb.The original arbitration agreement or a duly certified copy of it andc.The original arbitration agreement or duly certified copy of it. 36.Section 37 of the Act provides for refusal of recognition or enforcement on grounds which I have stated in the ruling on summons for setting aside of the Arbitral Award dated 14/10/2025 which the court has found not merited. 37.The Applicant herein has provided to court the documents required for the award to be recognized, to wit, the original Final Arbitral Award made on 15/08/2025, and the arbitral agreement between the parties made on 15/09/2022. The Summons for setting aside the said arbitral award having been dismissed, there is no challenge to the reliefs sought in the chamber summons dated 1/09/2025. That being the case, I find no reason not to grant the orders as prayed. 38.Section 32A of the Act, provides that an Arbitral Award is final and binding upon the parties to it, and no recourse is available against the award otherwise than in the manner provided by this act. 39.For the foregoing, the Arbitral Award made and published on 15/08/2025 is hereby recognized as binding between the parties and shall be enforced as a decree of the court. 40.On the matter of costs, taking into account provisions of Section 27 of the Civil Procedure Act, and the principle that costs follow the event, costs of the twin summons are awarded as hereunder;-(a).On Chamber Chamber summons dated 14/10/2025, Kitusuru Spur Apartments Ltd is condemned to bear costs of the summons.(b).On Chamber Summons dated 1/9/2025, the Applicant shall bear own costs of the motion.Orders accordingly. DELIVERED DATED AND SIGNED AT NAIROBI THIS 25TH DAY OF JUNE 2026.……………………….JANET MULWA.JUDGE