https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12782

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **COMMERCIAL AND TAX DIVISION** **MISC. APPLICATION NO. E043 OF 2025** **KENYA AIRLINE PILOTS INVESTMENT LIMITED….APPLICANT** **VERSUS** **KAYAHWE LANE LIMITED...................................RESPONDENT** **RULING** 1. Before this Court for determination is the Chamber Summons dated 26th March, 2025, brought under Sections 36 and 37 of the Arbitration Act, 1995 seeking: 2. ***That the Final Arbitral Award dated and published on 29th October, 2024, by Wilfred Nderitu, SC, in the arbitration between Kenya Airline Pilots Investment Limited and Kayahwe Lane Limited be recognized as binding and enforced as a judgment of this Court.*** 3. ***That a decree do issue in terms of the award.*** 4. ***That the costs of the application be awarded to the Applicant.*** 5. The application is supported by the affidavit and further affidavit of Fredrick Mbeti Kioko Malu, a Director of the Applicant, sworn on 26th March, 2025, and 23rd November, 2025, respectively. 6. The Respondent opposes the application through the replying affidavit of David Muriuki Mambo sworn on 23rd September, 2025. 7. The dispute between the parties arose from three agreements for sale all dated 5th May, 2011, for the sale and purchase of three separate apartments. Under the agreement the Respondent was obliged to complete the transaction and grant vacant possession within the stipulated period. Owing to disputes that arose between the parties, the matter was referred to arbitration pursuant to the arbitration clause number 24 contained in the three agreements. 8. Wilfred Nderitu, SC was appointed as the sole arbitrator. Following pre-trial directions on 5th April, 2018, the arbitral proceedings proceeded and culminated in a Final Award published on 29th October, 2024, in favour of the Applicant. 9. Prior to the publication of the award, the Applicant instituted High Court Commercial Arbitration Cause No. E016 of 2024 seeking, among other reliefs, intervention by the Court following the delay in delivery of the award by the arbitrator. Upon issuance of the Final Award, that matter marked as overtaken by events and the file closed. Reference was made to the court order issued on 30th October, 2024, in High Court Commercial Arbitration Cause No. E016 of 2024. 10. The Applicant now seeks recognition and enforcement of the award on grounds that it has fully complied with the requirements of Section 36(3) of the Arbitration Act by furnishing the Court with certified copies of the arbitral award and the agreements containing the arbitration clause. 11. It further argues that no application has been filed to set aside, suspend or vary the award and that the statutory period within which such a challenge could be mounted has lapsed. 12. The Applicant contends that the Respondent has failed to satisfy the award and that none of the grounds set out under Section 37 of the Arbitration Act have been established. Reliance was placed on ***Lalji Meghji Patel & Co. Limited v Nature Green Holdings Limited [2017] eKLR***and***Francis K.E. Hinga v George B. Nyanja [2006] eKLR*** for the proposition that courts ought to uphold the finality of arbitral awards and limit intervention to the instances expressly provided under the Arbitration Act. 13. The Applicant urges the court to allow the application as prayed. 14. The Respondent opposes enforcement principally on the basis that the Applicant had previously filed proceedings seeking the removal of the arbitrator and questioning his ability to render an award. According to the Respondent, the Applicant cannot approbate and reprobate by first seeking the removal of the arbitrator and thereafter seeking enforcement of the very award rendered by the same arbitrator. 15. The Respondent further contends that the delay of approximately four years in delivery of the award was inordinate, contrary to public policy and inconsistent with the fair administration of justice. The Respondent urges the Court to find that recognition and enforcement of the award would be prejudicial and contrary to public policy. ***Analysis and Determination*** 1. I have carefully considered the application, the affidavits filed by parties as well as their submissions and the sole issue arising for determination is whether the Applicant has satisfied the requirements for recognition and enforcement of the arbitral award dated 29th October, 2024. 2. The law governing recognition and enforcement of domestic arbitral awards is contained in Sections 36 and 37 of the Arbitration Act. Section 36(1) provides that a domestic arbitral award shall be recognized as binding and, upon application to the High Court, shall be enforced subject only to Sections 36 and 37 of the Act. Section 36(3) requires the Applicant to furnish the Court with the original arbitral award or a duly certified copy thereof together with the original arbitration agreement or a duly certified copy thereof. 3. The record before Court demonstrates that the Applicant has furnished a duly certified copy of the Final Award and certified copies of the agreements containing the arbitration clause. The statutory requirements under Section 36(3) have therefore been satisfied. 4. The Court must then consider whether there exists any ground under Section 37 of the Arbitration Act to justify refusal of recognition and enforcement. 5. In ***Lalji Meghji Patel & Co. Limited v Nature Green Holdings Limited [2017] eKLR****,* the Court while relying on In the case of***Tanzania National Roads Agency v Kudan Sigh Construction Limited Misc. Civil Application No. 171 of 2012*** emphasized that; recognition and enforcement of arbitral awards both domestic and foreign is automatic under the provisions of Section 36 of the Arbitration Act and once the party seeking enforcement has complied with Section 36, the burden shifts to the party opposing enforcement to demonstrate the existence of any of the grounds specified under Section 37. 6. It is not in contention that at the arbitral award has not been settled and there is no proposal of settling the quantum rendered by the arbitral tribunal. The Respondent has not alleged incapacity of the parties, invalidity of the arbitration agreement, lack of notice, inability to present its case, excess of jurisdiction, improper composition of the tribunal, or that the award has been set aside or suspended. Equally, no allegation has been made or proved that the award was induced by fraud, bribery, corruption or undue influence as contemplated under Section 37(1)(a)(vii). 7. The Respondent's principal objection is that the Applicant previously filed proceedings seeking the removal of the arbitrator in HCCOMMARB No. E016 of 2024 and thus he cannot approbate and reprobate by first seeking the removal of the arbitrator and thereafter seeking enforcement of the very award rendered by the same arbitrator. 8. In the Court's view, that argument does not constitute a ground for refusing recognition under Section 37 since the material placed before Court shows that the proceedings in HCCOMMARB No. E016 of 2024 were precipitated by the delay in delivery of the award. However, before the Court could make any determination on the merits of those proceedings, the arbitrator delivered the Final Award. Consequently, no judicial finding was ever made removing the arbitrator or invalidating the arbitral proceedings. 9. The mere filing of proceedings challenging or questioning the arbitrator's continued conduct of the reference cannot, without more, invalidate a subsequently rendered award, particularly where no order was issued removing the arbitrator or setting aside the proceedings. 10. The Respondent further argues that the award was delivered after an inordinate delay and is therefore contrary to public policy. Public policy is one of the recognized grounds upon which an arbitral award may be declined enforcement. However, it is well settled that courts must approach the public policy exception with restraint so as not to undermine the finality of arbitration. 11. In ***Christ for All Nations v Apollo Insurance Co. Ltd [2002] eKLR****,* Ringera J. (as he then was) observed that an award would be contrary to public policy if it is inconsistent with the Constitution or other laws of Kenya, inimical to the national interest, or contrary to justice and morality. 12. In ***Safaricom Limited v Abiero & another [2024] KEHC 15743 (KLR****):* the court observed that; **“Public policy is a broad concept incapable of precise definition. An award can be set aside under Section 35(2)(b)(ii) of the**[**Arbitration Act**](https://kenyalaw.org/akn/ke/act/1995/4)**as being inconsistent with the public policy of Kenya if it is shown that it was either (a) inconsistent with**[**the Constitution**](https://kenyalaw.org/akn/ke/act/2010/constitution)**or any other law of Kenya whether written or unwritten, or (b) inimical to the national interest of Kenya, or (c) contrary to justice and morality…..”** **…. A party seeking to challenge an award on this ground must identify the public policy relied on and must then show which part of the award conflicts with that policy.”** 1. The Respondent has simply pointed to the delay in publication of the award. No evidence has been placed before Court demonstrating how the delay occasioned any specific prejudice affecting the integrity of the arbitral process or rendering the award inconsistent with justice, morality, or the laws of Kenya. A challenge on public policy cannot without more succeed merely by alleging unfairness caused by the delay in publishing the decision. 2. More importantly, the Respondent did not file an application to set aside the award under Section 35 of the Arbitration Act after it was published. The Court cannot, at the enforcement stage, convert Section 37 proceedings into an avenue for a belated challenge to the merits or validity of the award. 3. The Court of Appeal in ***Francis K.E. Hinga v George B. Nyanja [2006] eKLR*** underscored the principle of finality of arbitral awards and emphasized that court intervention in arbitration matters is restricted to the specific instances provided under the Arbitration Act. 4. Having considered the material before Court, I am not persuaded that any of the statutory grounds under Section 37 have been established. The award remains valid, binding and enforceable. Consequently, the Chamber Summons dated 26th March, 2025, is merited and is hereby allowed as follows; 5. **The Final Arbitral Award dated 29th October 2024 issued by Wilfred Nderitu, SC in the arbitration between Kenya Airline Pilots Investment Limited and Kayahwe Lane Limited is hereby recognized as binding.** 6. **The said award is adopted as a judgment of this Court pursuant to Section 36 of the Arbitration Act, 1995.** 7. **A decree shall issue in terms of the arbitral award.** 8. **The Applicant shall have the costs of this application.** 9. It is so ordered. ***Delivered, Dated and Signed virtually this 6th day of August, 2026*** **RHODA RUTTO** **JUDGE** **Court Assistant: Wabwire**