https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9065

Kenya Ports Authority v Usercare Ltd (Arbitration Cause E066 & E067 of 2025 (Consolidated)) [2026] KEHC 9065 (KLR) (Commercial and Tax) (26 June 2026) (Ruling) Neutral citation: [2026] KEHC 9065 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Arbitration Cause E066 & E067 of 2025 (Consolidated) FG Mugambi, J June 26, 2026 Between Kenya Ports Authority Applicant and Usercare Limited Respondent Ruling 1.This ruling disposes of two applications. The first is the application dated 19th August 2025, which seeks to set aside the Arbitral Award published by the sole Arbitrator, Prof. Kenneth Wyne Mutuma, and published on 19th May 2025. The Section 35 application is grounded on the averments set out on the face of the application, the supporting affidavit sworn by John Turasha Kinyanjui on even date, and a further affidavit sworn on 8th January 2026. Two principal grounds are advanced in support of the application. First, that the Award deals with matters falling outside the scope of the reference to arbitration and second, that the Award is contrary to the public policy of Kenya. 2.The application is contested by way of a Replying Affidavit sworn by MWANIKI MUNUHE on 9th October 2025. Both parties also filed skeleton submissions, which I have duly considered in arriving at the analysis and determination set out below. Analysis and Determination 3.In determining the issues raised by the parties, I am guided by Section 10 of the Arbitration Act, which unequivocally circumscribes the extent to which this Court may intervene in an arbitral process. The permissible grounds for such intervention are narrowly set out under Section 35(2) of the Act. As the Court of Appeal underscored in Kenya Oil Company Limited & Another V Kenya Pipeline Company, [2014] KECA 851 (KLR), an Arbitrator is the master of facts, and factual determinations contained in an Award are final and not amenable to re-litigation before the courts. 4.The first ground upon which the application is premised is that, having found that no Service Level Agreements (SLAs) were entered into between the parties for the provision of the support and maintenance services that form the subject matter of the Award, the Tribunal nonetheless proceeded to consider claims arising from those very contracts. It is contended that in so doing, the Tribunal exceeded the scope of its jurisdiction, thereby committing an act of jurisdictional overreach. 5.The Respondent denies both the finding impugned against the Tribunal and the assertion that the Tribunal strayed beyond matters properly submitted to arbitration. According to the Respondent, the only preliminary issue placed before the Tribunal was whether the SLA provisions necessitated the conclusion of separate agreements as a condition of their validity, which issue the Tribunal dealt with. 6.Notably, the Applicant concedes that the question now brought before this Court is one of jurisdiction, arising from the interpretation of the arbitration clause. In that context, the decision in Kenya Oil Company Limited & Another V Kenya Pipeline Company, [2014] eKLR is instructive, where the Court of Appeal held that the court cannot interfere with an arbitrator's interpretation of the law or of a contract, as the court's jurisdiction to set aside an award under Section 35 of the Act is distinct from appellate jurisdiction under Section 39. The arbitral tribunal remains the master of the facts, and it is immaterial whether the court regards those factual findings as correct or otherwise. 7.It also bears emphasis that a tribunal is competent to rule on its own jurisdiction by virtue of the kompetenz-kompetenz doctrine, which is codified in the Arbitration Act. Section 17(2) and (3) of the Act provides that a plea challenging the tribunal's jurisdiction must be raised no later than the filing of the statement of defence, and a plea that the tribunal is exceeding the scope of its authority must be raised as soon as the matter alleged to be beyond that scope arises during the proceedings. 8.By electing not to raise the jurisdictional objection before the Tribunal at the appropriate stage, the Applicant is presumed in law to have waived its right to challenge jurisdiction on the basis of the SLAs. Having allowed the proceedings to run their full course before ventilating this objection, the Applicant cannot now do so before this Court. Such a belated challenge does not fall within the narrowly circumscribed grounds prescribed under Section 35(2) of the Act. I therefore decline any invitation to deal with the issue. 9.The Applicant further contends that the Award offends public policy by purporting to enforce obligations under the unsigned SLAs. It is argued that the Award is inconsistent with Articles 10 and 201 of the Constitution and Section 135(4) of the Public Procurement and Disposal Act (PPADA), particularly given that the Respondent is a public entity. The Respondent, for its part, maintains that the invocation of the public policy ground is unsustainable and that a mere disagreement with the Arbitrator's interpretation of the contract or the evidence does not constitute a violation of Kenyan public policy. 10.The public policy ground under Section 35(2)(b)(ii) of the Act, upon which this limb of the application is anchored, permits a court to set aside an award only where it is found to be in conflict with the public policy of Kenya. This is a ground that attracts a high threshold. It is well-settled that this ground is not designed to serve as a backdoor avenue 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 foundational principles of justice and morality as understood in Kenya. 11.As was affirmed in Christ for All Nations V Apollo Insurance Co Ltd, [2002] 2 EA 366 and Centurion Engineers & Builders Limited V Kenya Bureau of Standards, [2023] KECA 1289 (KLR), an award will only be found to be 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. 12.Having carefully examined the Award, I am not persuaded that it offends the public policy of Kenya as alleged. The Applicant willingly submitted to the jurisdiction of the Tribunal and participated fully in the proceedings until the dispute was heard and determined, all without raising the jurisdictional objection now sought to be recast as a public policy ground. It is apparent that what the Applicant seeks to do at this juncture is to mount what is, in substance, an appeal against findings with which it is dissatisfied, under the guise of public policy. That is not what the ground was intended for. 13.Parties who elect to resolve their disputes through arbitration do so with full knowledge that they are binding themselves to the process and to honour the Arbitrator's findings on matters of fact. In this regard, the observations of Ringera J (as he then was) in the Christ for All Nations case remain as apposite today as when they were first made, to the effect that the public policy of Kenya leans towards the finality of arbitral awards and that parties to an arbitration must learn to accept an award, with all its imperfections, subject only to the right of challenge within the narrow confines of Section 35 of the Arbitration Act. 14.In the result, the Applicant has not discharged the high threshold required to establish that the Award is in conflict with the public policy of Kenya, and there is accordingly no basis upon which this Court can intervene. The application dated 19th August 2025 is hereby dismissed. 15.Turning to the application for recognition and enforcement of the Award as a judgment and decree of this Court, also dated 19th August 2025, I note that the grounds upon which the Respondent opposed enforcement mirror those advanced in the application to set aside the Award, which has since been determined and dismissed. The Applicant in this latter application has duly placed before the Court a certified copy of both the arbitration agreement and the Award, neither of which is in dispute between the parties. In the circumstances, I find no valid basis upon which to decline recognition and enforcement of the Award pursuant to Section 36 of the Arbitration Act, and the application is accordingly granted. Conclusion and Disposition 16.In light of the above, the following final orders do hereby issue:i.The application dated 19th August 2025 seeking to set aside the Award is dismissed.ii.The application dated 19th August 2025 seeking the recognition of the Award is allowed on the terms of the Final Award published by Prof. Kenneth Wyne Mutuma, on 19th May 2025 and leave is hereby granted to the Applicant to enforce it as a decree of this court.iii.The Applicant 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 Mallei for Nyamodi for respondentAira Godfrey for Madowo for applicantCourt Assistants: Lillian & Gloria