https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9066

KCB Bank Ltd v Quite Bright Films Ltd (Arbitration Cause E064 & E072 of 2025 (Consolidated)) [2026] KEHC 9066 (KLR) (26 June 2026) (Ruling) Neutral citation: [2026] KEHC 9066 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Arbitration Cause E064 & E072 of 2025 (Consolidated) FG Mugambi, J June 26, 2026 Between Kcb Bank Limited Applicant and Quite Bright Films Limited Respondent Ruling Introduction and Background 1.On 1st June 2025, the Arbitral Tribunal, Arch. Sylvia M. Kasanga (“the Arbitrator”) published an award where the Respondent was directed to pay the Applicant Kshs. 33,990,150.00, interest on this sum at 10% per annum until payment in full and costs of the arbitration (“the Award”). Both parties have now filed applications before the court with the Applicant seeking to recognize and enforce the Award through its Chamber Summons dated 5th August 2025 whereas the Respondent seeks to set it aside through the Notice of Motion dated 3rd September 2025. The parties supplemented their arguments on the application to set aside the Award by way of written submissions that I have considered together with the pleadings and I will be making relevant references to the same in my analysis and determination below. Analysis and Determination 2.I propose to first deal with the application to set aside the Award, which application is supported by the affidavit of Pauline Larre, a director of the Respondent. 3.The Respondent contends that the Arbitrator failed to properly consider and evaluate the evidence presented by both parties. It is alleged that she disregarded evidence favorable to the Respondent, including material adduced during the hearing. As a result, the Respondent maintains that there exists a legitimate concern that it was denied the right to a fair hearing as guaranteed under Article 50(9) of the Constitution. The extent to which the Respondent’s submissions and evidence were overlooked, it is argued, gives rise to a reasonable apprehension of bias on the part of the Arbitrator. 4.Furthermore, the Respondent contends that the Award reflects partial and prejudiced findings. By rejecting or ignoring material evidence, the Arbitrator is said to have effectively altered the Parties’ Agreement through selective interpretation and enforcement. The Respondent argues that the Award offends public policy, being tainted by a fundamental miscarriage of justice and morality, and constitutes a violation of the Respondent’s constitutional rights. 5.In response, the Applicant filed the Grounds of Opposition dated 30th April 2026 stating that the Respondent was improperly trying to re-litigate the merits of the dispute and the grounds cited therein were essentially an appeal against the Arbitrator's factual findings, which is not allowed under the law. The Applicant contends that the Respondent has not established any of the specific, exhaustive grounds required to set aside an award under section 35(2) of the Arbitration Act and its mere disagreement with the Arbitrator's conclusions is insufficient to meet this threshold. 6.The Applicant asserts that the Respondent’s use of the “public policy” ground is unsustainable and that a simple disagreement with the Arbitrator's interpretation of the contract or evidence does not constitute a violation of Kenyan public policy. That the Respondent has not shown that the Award shocks the conscience of the court. The Applicant adds that the Applicant is estopped from raising procedural objections now because it failed to raise them during the arbitration proceedings and that by participating fully without objecting, the Applicant is deemed to have waived its right to object at this stage. 7.The Applicant contends that the Respondent’s reliance on Article 50 of the Constitution on the right to a fair hearing is misplaced as this constitutional guarantee cannot be used to circumvent the specific and limited grounds for setting aside an award under the Arbitration Act. The Applicant avers that the Respondent has failed to provide any proof of the circumstances that would justify setting aside the award, such as fraud, corruption, or a denial of a proper opportunity to be heard. 8.I have duly considered the case advanced by both parties. It is not in dispute that under section 35 of the Arbitration Act this court has jurisdiction to set aside an Award. This jurisdiction is circumscribed therein and the court’s intervention is limited to those grounds alone (see Nyutu Agrovet Limited V Airtel Networks Kenya Limited, [2019] KESC 11 (KLR)). As per Section 35(2)(b)(ii) of the Arbitration Act, under which the Respondent’s application is anchored on, an award can be set aside if this court finds that: “the award is in conflict with the public policy of Kenya”. 9.The proposition advanced by the parties, namely that an arbitral award may be set aside for being “contrary to public policy”, is one that attracts a high threshold. Jurisprudence has consistently held that this ground is not intended to serve as a backdoor for appealing the merits of an award. Rather, it is reserved for those exceptional circumstances where the award shocks the conscience of the court, is inherently immoral, or violates the fundamental principles of justice and morality in Kenya. As was stated in 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), an award will only be found contrary to public policy if it is clearly injurious to the public good, wholly offensive to the ordinary reasonable and fully informed member of the public, or inimical to the integrity of the justice system. 10.Having carefully examined the Award, I am not persuaded that it offends Kenya’s public policy as alleged by the Respondent. There is no credible basis upon which this Court can set aside the Award on that ground. The Respondent’s assertions that the Arbitrator “failed to even-handedly consider and evaluate” the evidence, that she disregarded submissions, and that she “re-wrote the Parties’ Agreement” amount to nothing more than grounds of appeal disguised as a challenge under section 35 of the Arbitration Act. 11.What the Respondent is in fact contesting are the Arbitrator’s factual findings, her assessment of the evidence, and her interpretation of the Agreement between the parties. These matters fall squarely within the province of the arbitral tribunal and cannot be reopened by this Court under the guise of public policy. Parties who submit their disputes to arbitration do so with the full knowledge that they are binding themselves to the arbitral process and to honour the Arbitrator’s findings on matters of fact. As the Court of Appeal emphasized in Kenya Oil Company Limited & Another v Kenya Pipeline Company, [2014] KECA 851 (KLR), arbitral awards on factual determinations are final and not subject to re-litigation before the courts. It is further notable that the Respondent did not raise the issue of bias before the tribunal, but instead participated fully in the proceedings until the issuance of the Award. 12.The Respondent has argued that the Arbitrator “re-wrote” the contract by directing a refund of the deposit. In my view, this amounts to a disagreement over the legal characterization of the payment rather than a demonstration of violation of public policy. I am mindful of the principle of contractual sanctity as articulated in National Bank of Kenya Ltd V Pipeplastic Samkolit (K) Ltd & Another, [2001] KECA 362 (KLR), where the Court of Appeal held that courts do not rewrite contracts for parties. However, that principle is directed at the judicial function of courts and does not preclude an arbitrator from interpreting contractual terms in the course of resolving a dispute. An arbitrator’s interpretation, even if erroneous, remains within the scope of the arbitral process and does not, without more, amount to a breach of public policy. 13.I am fully in agreement with the observations made by Ringera J (as he then was), in the Christ for All Nations Case (Supra) that:“…the public policy of Kenya leans towards finality of arbitral awards and parties to an arbitration must learn to accept an award, warts and all, subject only to the right of challenge within the narrow confines of section 35 of the Arbitration Act.” 14.The long and short of this is that the Respondent has not met the high standard required to prove that the Award violates the public policy of Kenya and therefore, the Court cannot intervene. Accordingly, the Respondent’s application dated 3rd September 2025 now stands dismissed. 15.Turning now to the Applicant’s application seeking recognition and enforcement of the Award as a judgment and decree of this Court, I note that the Respondent’s objection was premised on the pendency of its application to set aside the Award. That application has now been disposed of in the negative. The Applicant has duly furnished the Court with a copy of the arbitration agreement and the Award, both of which are common to the parties. In the circumstances, I find no valid reason to decline enforcement under section 36 of the Arbitration Act. Conclusion and Disposition 16.In light of the above, the following final orders do hereby issue:i.The Respondent’s application dated 3rd September 2025 is dismissed.ii.The Applicant’s application dated 5th August 2025 is allowed on terms that the Final Award published by Arch. Sylvia M. Kasanga 1st June 2025 be and is hereby recognized as binding and leave be and is hereby granted to the Applicant to enforce it as a decree of this court.iii.The Respondent shall bear the costs of both applications. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 26TH DAY OF JUNE 2026.F. MUGAMBIJUDGEDelivered in presence of:Ms Kipkulei h/b for GichanaCourt Assistants: Lillian & Gloria