[2019] KEHC 3982 (KLR)
The court found that the respondent did not deny that more than three months had elapsed since receipt of the arbitral award, and therefore was barred by section 35(3) of the Arbitration Act from challenging the award. No grounds for setting aside the award under section 37 were presented. Consequently, the court...
Source-derived case information.
- Citation
- [2019] KEHC 3982 (KLR)
- Parties
- Applicant: Kenya Railways Staff Retirement Benefits Scheme; Respondent: Mits Electrical Company Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application E122 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Recognition and Adoption of Arbitral Award
- Outcome
- Application allowed. Arbitral award recognized and adopted as judgment of the court. Respondent to pay arbitrator's fees and costs to applicant.
- Judges
- MM Kasango
- Legal Topics
- Arbitral Award Recognition, Enforcement of Arbitral Awards, Limitation Periods, Costs in Arbitration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Railways Staff Retirement Benefits Scheme
Applicant
Mits Electrical Company Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Recognition and Adoption of Arbitral Award
Legal Issues
- 1 Whether the arbitral award dated 15th November 2017 should be recognized and adopted as a judgment of the court.
- 2 Whether the respondent is barred from challenging the arbitral award due to lapse of the statutory period under section 35(3) of the Arbitration Act.
- 3 Whether the respondent should refund the arbitrator's fees to the applicant.
Ratio Decidendi
The court found that the respondent did not deny that more than three months had elapsed since receipt of the arbitral award, and therefore was barred by section 35(3) of the Arbitration Act from challenging the award. No grounds for setting aside the award under section 37 were presented. Consequently, the court held that there was no impediment to recognizing and adopting the arbitral award as a judgment of the court. The applicant was entitled to the orders sought, including the refund of the arbitrator's fees and costs of the action.
Court Disposition
Application allowed. Arbitral award recognized and adopted as judgment of the court. Respondent to pay arbitrator's fees and costs to applicant.
Orders
- The Final Award given by Arbitrator Phyllis Wangwe on 15th November 2017 and the Ruling on Taxation of 17th September 2018 are recognized and adopted as judgment of the court.
- The respondent shall pay Ksh342,500 to the applicant being the arbitrator’s costs.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL & TAX DIVISION
MISC. CIVIL APPLICATION NO. E122 OF 2018
KENYA RAILWAYS STAFF RETIREMENT BENEFITS SCHEME...APPLICANT
-VERSUS-
MITS ELECTRICAL COMPANY LIMITED......................................RESPONDENT
RULING
1. The Chamber Summons dated 12th October is filed by the Kenya Railway Staff Retirement Benefits Schemes. The applicant seeks by that application the recognition and adoption as a judgment of this court the Final Award of the Arbitrator Phyllis Wangwe, dated 15th November 2017 together with the taxed costs. The applicant also seeks an order be made that the sum of Ksh 342,500, being the arbitrators fees be refunded by the respondent, Mits Electrical Company Limited.
2. The replying affidavit in opposition to the application is sworn by Satya Bhama Gandhi. He describes himself as the former Managing Director of the respondent. He deponed that on the passing away of the respondent’s chairman, Prieya Ghandi, on 6th November 2017 the respondent was struck off the register. The deponent also started that it had not been given notice of the reading of the award and that the arbitrator awarded costs to the applicant contrary to the parties agreement.
ANALYSIS
3. What was contained in the respondent’s replying affidavit is submissions one would expect to be made in an application to set aside an arbitral award. The arbitrators award, in this matter, was published on 15th November 2017. Section 35 (3) of the Arbitration Act provides an arbitral award may be set aside only within 3 months after the arbitrators award is received. That section 35 (3) provides:
“ (3)An application for setting aside the arbitral award may not be made after 3 months have elapsed from the date on which the party making that application had received the arbitral award, or if a request had been made under section 34 from the date on which that request had been disposed of by the arbitral award.”
4. The respondent did not deny that more than 3 months had elapsed since the arbitrators award was received. It follows that the respondent is prevented from challenging the award by provisions of that section.
5. The applicant has moved the court to recognize the arbitrators award. The recognition of arbitration award is under section 36 of the Arbitration Act which provides:
“(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”.
6. There are no grounds for setting aside the award, which fall under section 37 presented before the court. It follows that the application for recognition of the award has no impediment. The applicant having succeeded in the application it is entitled to costs.
CONCLUSION
7. The court grants the follow orders:
a. This court does hereby recognize and adopt as judgment of this court the Final Award given by Arbitrator Phyllis Wangwe on 15th November 2017 and the Ruling on Taxation of 17th September 2018.
b. The Respondent shall also pay Ksh342,500 to the Applicant being the Arbitrator’s costs.
c. The Respondent shall pay to the Applicant the costs of this action.
DATED and SIGNED at NAIROBI this 4TH day of October, 2019.
MARY KASANGO
JUDGE
Ruling Read in Open Court in the presence of:
Sophie.............................COURT ASSISTANT
....................................FOR THE APPLICANT
................................FOR THE RESPONDENT