https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12931

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **COMMERCIAL AND ADMIRALTY DIVISION** **HCCOMM ARBITRATION NO. E009 OF 2026** **MIDDLE EAST BANK** **KENYA LIMITED……………………………APPLICANT/RESPONDENT** **VERSUS** **KENINDIA ASSURANCE** **COMPNAY LIMITED……………………….RESPONDENT/APPLICANT** **RULING** 1. The Respondent/Applicant filed a Notice of Motion dated 13th April 2026 seeking to have the Chamber Summons dated 9th February 2026 struck out for having been filed outside the three-month period as per the provisions of Section 35(3) of the Arbitration Act. 2. The Applicant contends that the Arbitrator rendered and published the Final Award, save as to costs, on **21st October 2025**. It therefore argues that the Chamber Summons filed on 9th February 2026, seeking to set aside that Award by **Peter M. Gachui Esq**, was lodged outside the statutory period and is incompetent. 3. Middle East Bank Limited, the Respondent to the present application and Applicant in the Chamber Summons, opposes the motion. Its position is that the communication of 21st October 2025 neither notified the parties that the Award was available for collection nor specified the place from which it could be collected. According to the Bank, the material notification was the letter dated **11th November 2025**, which communicated when and where the Award could be collected. It contends that time under section 35(3) therefore began to run from that date. 4. The Bank further contends that the Award dated 21st October 2025 was not a final award because the question of costs remained outstanding. In its view, the tribunal remained seized of the reference until costs were ascertained or otherwise settled, and consequently the three-month limitation period could not commence before then. **Analysis and determination** 1. I have considered the application, the response, the submissions and the respective positions of the parties. The question for determination is whether the application to set aside the arbitral award is time-barred. 2. **Section 35(3)** of the **Arbitration Act** provides that: ***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.*** 1. In **Ezra Odondi Opar v Insurance Company of East Africa LimitedKSC CA Civil Appeal No. 98 of 2016 [2020] eKLR**, the Court of Appeal reiterated that: **“[22] The requirement that an application for setting aside an arbitral award may not be made after 3 months from the date on which the award is received is consistent with the general principle of expedition and finality in arbitration. As the Supreme Court of Kenya recently noted** in ***Nyutu Agrovet Limited v Airtel Networks Kenya Limited and another, SC Petition No. 12 of 2015* “the Arbitration Act, was introduced into our legal system to provide a quicker way of settling disputes” “in a manner that is expeditious, efficient…” while also observing that Section 35 of the Act, “also provides the time limit within which the application for setting aside should be made.”** 1. An arbitral award is deemed to have been received by the parties once the arbitral tribunal notifies the parties that the award is ready for collection. 2. **In Lantech (Africa) Limited v Geothermal Development Company ML HC Misc. Appl. No. E776 of 2020 [2020] eKLR** the court observed as follows: **“[33] delivery happens when the arbitral tribunal either gives, yields possession, releases or makes available for collection a signed copy of the award to the parties. In this regard therefore, our courts have held that the actual receipt of the signed copy of the award by the party is not necessary and that the Award is deemed to have been received by the parties when the arbitral tribunal notifies parties that a signed copy of the award is ready for collection because it is on that date that the tribunal makes the signed copy available for collection by the parties.”** 1. In the present case, the Applicant submits that on 20th October 2025 the arbitrator informed the parties of the publication of the award, which would be released upon payment of the fees. 2. On 10th November 2025, the arbitrator issued a letter informing the parties that *“I refer to my letter dated 21st October 2025 and acknowledge receipt of my fees. The award can be collected from my office on 11th November 2025, from 10.00 am.*” 3. Counsel for the Respondent therefore submits that from the foregoing it is clear that the notification communicating that the signed award was ready for collection was made on 10th November 2025 and thus time began to run on 11th November 2025 when the award was made available for collection. Counsel points out that by the letter of 20th October 2025 the award had not been published 4. I am unable to agree with that construction. The decisive consideration under section 35(3) is not the date upon which a party elects to collect the award, nor the terminology employed by the Arbitrator in describing its “publication”. The material question is whether the tribunal had completed the Award and communicated to the parties that it was available for release or collection. 5. The communication of 20th October 2025 conveyed that the award was ready for collection and would be released upon payment of the arbitrator's fees. Therefore, I conclude that the time period started from this date, and the Applicant/Respondent should have filed an application to set aside the award by or before 21st January 2026. I dismiss the argument that, according to the letter dated 20th October 2025, the publication was not ready and that if the parties had paid the fee demanded by the Arbitrator, the Award would have been released on the same day. I believe that the specific language used by the Arbitrator is not material, especially since the key issue here is the meaning of “delivery” under section 35(3) of the Arbitration Act, which differs from “publish”. 6. The subsequent letter of 10th November 2025 merely acknowledged payment and provided the logistical arrangements for physical collection. It did not constitute a fresh delivery of the Award within the meaning of section 35(3). 7. The Bank advances the additional argument that the Award of 21st October 2025 was merely interim because the tribunal had reserved the issue of costs. I respectfully disagree with this position. Section 35(3) is clear and unqualified: *the limitation period runs from the date on which the party "received the arbitral award."* The statute does not distinguish between awards that include costs and those that do not. 8. I therefore find that the reservation of costs did not postpone the commencement of time. 9. It follows that the Chamber Summons dated **9th February 2026** is time-barred. 10. Accordingly, the Notice of Motion dated **13th April 2026 is merited**. The Chamber Summons dated 9th February 2026 is hereby **struck out.** 11. The Respondent/Applicant will have the costs. It is so ordered. **RULING** delivered virtually, dated and signed at **NAIROBI** This **13th** day of **August** 2026. **PETER M. MULWA** **JUDGE** **In the presence of:** *Mr. Esmael* for Applicant *Mr. Lawson Ondieki & Mr. Mwendwa* for Respondent Court Assistant*: Sharon*