https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6663

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **COMMERCIAL AND ADMIRALTY DIVISION** **HCCOMMARB NO. E089 OF 2025** **NATIONAL HOUSING CORPORATION........................APPLICANT** **VERSUS TULSI CONSTRUCTION LIMITED...........................RESPONDENT** **RULING** 1. The court has been called to determine the Applicant’s Notice of Motion dated 13th November 2025 brought under Articles 25(c), 27, 48 and 50 of the Constitution, Section 7, 19 and 35 of the Arbitration Act, 1995 and Rule 7 of the Arbitration Rules, 1997. The Applicant seeks the following prayers: 2. *Stay of the ongoing arbitral proceedings between Tulsi Construction Ltd and the National Housing Corporation pending determination of the application.* 3. *Setting aside the Interim Award dated 21st October 2025 and substituting it with the prayers sought in its Motion dated 1st August 2025 before the Arbitral Tribunal.* 4. *In the alternative, the Applicant prays that should the Arbitrator, Mr. Nyagah B. Kithinji, be unable, unwilling, or deemed unsuitable to continue with the arbitration, the proceedings do proceed before another arbitrator to be agreed upon by the parties, on the basis of the existing audio and/or transcript record.* 5. *Costs of the application.* 6. The application is supported by the affidavit of David Mathu Njuguna and premised on the grounds that the arbitral proceedings concerning the tender awarded for the construction of 600 housing units in Kisumu City, Kanyakwar Area, awarded to the Respondent, which is averred to have been marred with irregularities and breach of the Public Procurement and Disposal Act 2005. 7. He depones that the arbitral proceedings commenced on 12th April 2022 with the Respondent’s first witness giving evidence in chief and re-examination taking 7 hours and 56 Minutes while the time expended for cross examination was 9 hours 10 minutes that given the length of the time taken the parties consented to limit the time for the witness to 45 minutes in examination in chief, 10 hours in cross examination and 2 hours re- examination. 8. The Applicant avers that the Respondent took a total of 18 hours 21 minutes in examination in chief and re- examination, while the applicant took 49 hours 51 minutes in cross-examination of the Respondent’s witnesses. 9. The Applicant contends that although the parties had agreed on strict time-capping arrangements for witnesses, the Respondent utilized over three years 3 months to prosecute its case. The Applicant avers that it had at the commencement of the arbitration intended to call 6 witnesses, but it now intends to call one witness and filed an application dated 1st August 2025 before the Arbitrator seeking to extend the time for its single witness Dr. Isabella Njeri to 8 hours examination in chief, 8 hours for re-examination and such adjustments be made to the allocated time for cross-examination. However, the Arbitrator declined to allow the application. 10. The Applicant states that its request for enlargement of time was intended to expedite the proceedings and conclude its case within a few days, but the Arbitrator instead restricted its sole witness to severely limited timelines. The Applicant avers that the Respondent was substantially accorded more hearing time as opposed to it. 11. The Applicant further avers that the Arbitrator’s Interim Award dated 21st October 2025 dealt with matters not placed before him, including granting further cross-examination of Dr. Nzai who had been released following the conclusion of his cross- examination It is contended that the Arbitrator thereby exceeded the scope of the reference, misconstrued the issues for determination, and issued directions amounting to procedural irregularities contrary to established arbitral practice. 12. The Applicant avers the rigid time cap in respect of its sole witness unjustifiably infringes its constitutional rights, under Articles 27 and 50 of the Constitution as well as Section 19 of the Arbitration Act by denying the parties equal treatment and limiting the Applicant’s non-derogable right to a fair hearing. It is argued that restricting the Applicant’s witness to approximately two hours and forty-five minutes, after the Respondent had enjoyed over sixteen hours to advance its evidence, creates manifest inequality and unfairness. 13. Additionally, the Applicant contends that reverting to six witnesses would unnecessarily prolong the proceedings, escalate arbitral costs, and occasion waste of public resources. It maintains that the Arbitrator improperly attempted to direct how the defence case should be conducted and which witnesses ought to be called, thereby interfering with the Applicant’s constitutional right to determine its own case. 14. Finally, the Applicant alleges bias and procedural unfairness on the part of the Arbitrator, arguing that the hurried resumption dates issued immediately after the delivery of the Interim Award prejudiced its ability to challenge or adequately prepare in response to the ruling. The Applicant therefore seeks the intervention of the Court under Section 35 of the Arbitration Act to set aside the Interim Award on grounds that it exceeded the scope of reference, violated constitutional principles, and offended public policy. 15. The Respondent opposes the application vide the replying affidavit of Patel Suryakanbhai Bhailalbhai sworn on 21st November 2025. He disposed that the dispute concerning the Kanyakwar Housing Project is properly before the Arbitral Tribunal and that the High Court lacks jurisdiction to interrogate the merits of the procurement process, contractual obligations, or alleged irregularities in the tender process by virtue of Section 10 of the Arbitration Act. 16. The Respondent contends that the issue of enlargement of time for examination of the Applicant’s witness had already been conclusively determined by the Tribunal in earlier proceedings and is therefore *res judicata*. It is further argued that the Tribunal is *functus officio* and lacks jurisdiction to revisit the issue. According to the Respondent, the parties had by consent agreed on timelines of 45 minutes for examination-in-chief, 10 hours for cross-examination and 2 hours for re-examination, which timelines became binding upon them. 17. The Respondent further avers that the impugned Interim Award merely enforced the agreed procedural timelines and did not violate the Applicant’s rights. It maintains that the Applicant voluntarily elected to call only one witness instead of six and cannot rely on its own litigation strategy as a basis for varying agreed timelines. The Respondent asserts that altering the timelines after it had already closed its case would prejudice it and undermine the principle of equality of arms under Section 19 of the Arbitration Act and Articles 47 and 50 of the Constitution. 18. The Respondent also opposes the prayer seeking replacement of the Arbitrator, contending that no application for recusal has been filed before the Tribunal as required under Sections 13 and 14 of the Arbitration Act. It further states that the present Arbitrator was appointed with the consent of both parties after challenges to two previous arbitral appointments, and there is no evidence that he is unwilling, unable or unsuitable to continue with the proceedings. 19. It is contended that the application is misconceived, procedurally improper, and an abuse of the arbitral process intended to delay the hearing, and urges the Court to dismiss it with costs. 20. The application was canvassed by way of written submissions together with oral highlights by counsel. **Applicant’s submissions** 1. The Applicant submits that the Interim Award is liable to be set aside under Section 35 of the Arbitration Act on the grounds that the Arbitrator exceeded the scope of the reference, violated the Applicant’s constitutional rights, acted contrary to public policy, and demonstrated apparent bias. 2. The Applicant contends that the Arbitrator improperly granted additional time for cross-examination of Dr. Nzai a witness who had already been discharged, notwithstanding that no such prayer had been sought in the Applicant’s motion. It is argued that the Arbitrator thereby dealt with matters beyond the scope of the reference contrary to Section 35(2)(a)(iv) of the Arbitration Act. Reliance was placed on *Ezra Odondi Opar v Insurance Company of East Africa Ltd; Devkiroop Enterprises Ltd v Harree Construction Ltd* and *State of Goa v M/s Praveen Enterpris*e for the proposition that an arbitrator cannot determine issues not referred for arbitration. The Applicant further contends that the Arbitrator is *functus officio* and incapable of revisiting the impugned award, leaving this Court as the only forum capable of granting relief. 3. Further, Applicant argues that the Arbitrator unjustifiably restricted its sole witness to forty-five minutes for examination-in-chief and two hours for re-examination, despite the Respondent having utilized over eighteen hours in advancing its case. It is submitted that the limitation amounts to unequal treatment of the parties and violates Articles 27 and 50 of the Constitution as well as Section 19 of the Arbitration Act. The Applicant further faults the Arbitrator for purporting to dictate the number of witnesses it should call, contending that such interference undermines its autonomy in presenting its case and offends the right to a fair hearing. 4. The Applicant further submits that the impugned award is contrary to public policy within the meaning of Section 35(2)(b)(ii) of the Arbitration Act. Reliance was placed on *Christ for All Nations v Apollo Insurance Co. Ltd* and the Court of Appeal decision in *Vipingo Ridge Limited v Kikenni Properties Limited* to argue that an arbitral process that undermines fairness, equality and expeditious disposal of disputes offends public policy and constitutional principles. And by unnecessarily prolonging the arbitral proceedings, it was argued, would occasion wastage of public funds contrary to Article 201 of the Constitution, particularly given that the Respondent is a public entity. 5. The Applicant contends that the Arbitrator demonstrated disproportionate favour towards the Respondent through the impugned rulings and conduct during the proceedings. It is argued that the Arbitrator invoked unspecified “heavy constitutional and legal imperatives” to justify limiting the Applicant’s case, proposed expedited hearing dates immediately after delivery of the Interim Award, and treated the parties unequally in relation to adjournments. 6. In conclusion, the Applicant urges the Court to set aside the portions of the Interim Award relating to the recall of Dr. Nzai and the limitation imposed on Dr. Isabella Njeri’s testimony, and further seeks the recusal of the Arbitrator from the proceedings. **Respondent’s submissions** 1. The Respondent submits that the Application is incompetent, *res judicata* and an abuse of the arbitral process. It is contended that the issue of time allocation for examination of witnesses was expressly proposed by the Applicant, agreed upon by the parties, adopted by the Arbitral Tribunal and subsequently upheld in the Tribunal’s rulings dated 17th July 2024 and 21st October 2025. The Respondent argues that the Applicant cannot resile from timelines it voluntarily proposed after the Respondent had already presented and closed its case within the same framework. 2. Reliance was placed on Section 20 of the Arbitration Act and authorities including *Kenya Reinsurance Corporation Ltd v Road Trades (MSA) Corporation Ltd,* for the proposition that courts should not rewrite agreements freely entered into by parties. 3. The Respondent further submits that the agreed timelines ensured equality of arms and procedural fairness in accordance with Section 19 of the Arbitration Act and Article 50 of the Constitution. It was argued that granting the Applicant additional time would prejudice the Respondent, whose witnesses had already testified and could not be recalled to enjoy similar indulgence. Reliance was placed on Section 7 of the Civil Procedure Act, *Henderson v Henderson* and *Corbett Solutions Africa Limited v Export Processing Zones Authority & another* on the principle of finality in litigation. 4. On the issue of recusal or substitution of the Arbitrator, the Respondent submits that the application is premature, procedurally defective and outside the jurisdiction of this Court. It is argued that Sections 13 and 14 of the Arbitration Act prescribe a mandatory procedure requiring any challenge to an arbitrator to first be raised before the arbitral tribunal itself before recourse can be made to the High Court. 5. On costs, the Respondent submits that the Applicant’s conduct in filing repetitive and procedurally improper applications amounts to an abuse of process and warrants an award of costs. 6. In conclusion, the Respondent urges the Court to find that the Application is devoid of merit, contrary to the principles of party autonomy and finality in arbitration, and to dismiss the same with costs. Matters already determined by the Tribunal amounts to frivolous and vexatious litigation which has unnecessarily increased costs and delayed the arbitral process. **Analysis and determination** 1. I have considered the application, the affidavits on record, the rival submissions and the authorities cited. The issues arising for determination are: 1. *whether the impugned Interim Award dated 21st October 2025 is amenable to setting aside under Section 35 of the Arbitration Act;* 2. *whether the Applicant has established grounds for recusal or substitution of the Arbitrator;* 3. *who should bear the costs of the application.* 2. It is now settled that the role of the Court in arbitration matters is only supervisory, and its jurisdiction may only be invoked in very specific situations as stipulated in the Act. **Section 10** of the **Arbitration Act** provides that **“*Except as provided in this Act, no Court shall intervene in matters governed by this Act.”*** 3. By this section, the jurisdiction of the Court is limited and restricted and may only be invoked in very clear circumstances specified under the Act. 4. Further, **Section 32A** thereof provides: ***“Except as otherwise agreed by the parties, an arbitral award is final and binding upon the parties to it, and no recourse is available against the award otherwise than in the manner provided by this Act.”*** 1. The Applicant invokes Section 35(2)(a)(iv) and Section 35 (2) (b)(ii) of the Arbitration Act, contending that the Arbitrator exceeded the scope of reference and that the Interim Award offends public policy. 2. The gravamen of the Applicant’s complaint is that the Arbitrator granted additional time for further cross-examination of Dr. Nzai despite no such prayer having been sought and despite the witness having already been released. The Applicant further contends that the Arbitrator unfairly restricted the timelines to adduce evidence of its sole witness, Dr. Isabella Njeri. According to the applicant, the timelines granted by the Arbitrator are insufficient to present its defence and if the court fails to intervene, the applicant will suffer prejudice.. 3. It is not disputed that the parties herein agreed on timelines of forty-five (45) minutes for examination-in-chief, ten (10) hours for cross-examination and two (2) hours for re-examination per witness. In order to expedite the hearing, the Respondent proceeded with and closed its case within that framework. The Applicant equally participated in the proceedings under those timelines without objection until it elected, for strategic and logistical reasons, to proceed with only one witness. 4. Section 20(1) of the Arbitration Act expressly recognizes party autonomy by providing that parties are free to agree on the procedure to be followed by the arbitral tribunal in the conduct of proceedings. Courts have consistently held that they ought not rewrite bargains freely entered into by parties. (See **National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & another (2001) KECA 362 (KLR)**. 5. In the present case, the impugned timelines originated from the Applicant's proposal and were subsequently adopted by consent. The Applicant has now come to court seeking an enlargement of time for its witness Dr. Isabella Njeri. 6. **Section 19** of the **Arbitration Act** provides for equal treatment of parties, thus: ***“The parties shall be treated with equality and each party shall, subject to section 20, be given a fair and reasonable opportunity to present his case.”*** 1. While arbitration is anchored on party autonomy, procedural agreements cannot be applied mechanically where their implementation would occasion manifest unfairness or substantially impede a party’s ability to present its case. The Court must strike a balance between upholding party autonomy and safeguarding constitutional guarantees of fairness under Articles 27 and 50 of the Constitution. 2. The material before the Court demonstrates that the Respondent utilized 18 hours 21 minutes in examination in chief and re-examination. The Applicant has since elected to proceed with one witness instead of six, ostensibly in an effort to expedite the proceedings. In those circumstances, strict adherence to timelines initially contemplated when multiple witnesses were expected may occasion practical unfairness. 3. In **Msagha v Chief Justice & 7 Others Nairobi HCMCA no. 1062 of 2004 (Lessit, Wendo & Emukule, JJ on 3/11/06) (HCK) [2006] 2 KLR 553** the Court held: ***“The Court observes firstly that the rules of natural justice ‘audi alteram partem’ - hear the other party - and no man/woman may be condemned unheard are deeply rooted in the English common law and have been transplanted by reason of colonialization of the globe during the hey-days of the British Empire. An essential requirement for the performance of any judicial or quasi-judicial function is that the decision makers observe the principles of natural justice. A decision is unfair if the decision-maker deprives himself of the views of the person who will be affected by the decision…The principles of natural justice concern procedural fairness and ensure a fair decision is reached by an objective decision maker. Maintaining procedural fairness protects the rights of individuals and enhances public confidence in the process. The ingredients of fairness or natural justice that must guide all administrative decisions are, firstly, that a person must be allowed an adequate opportunity to present their case where certain interests and rights may be adversely affected by a decision-maker; secondly, that no one ought to be judge in his or her case and this is the requirement that the deciding authority must be unbiased when according the hearing or making the decision; and thirdly, that an administrative decision must be based upon logical proof or evidence material.”*** 1. I am alive to the Respondent’s argument that courts ought not rewrite procedural agreements voluntarily entered into by parties. That principle remains sound. However, the Court equally bears constitutional responsibility to ensure that procedural arrangements do not, in their actual operation, undermine the right to a fair hearing. 2. In the circumstances of this matter, I am persuaded that the timelines allocated to the Applicant’s sole witness are unduly restrictive in light of the fact that the Applicant intends to scale down its number of witnesses to one and reduce the time allocated for the hearing of its 6 witnesses and utilize it with the one witness. I therefore find merit in the Applicant’s request for reasonable enlargement of time. 3. The next issue is the Applicant’s complaint regarding the portion of the Interim Award relating to Dr. Nzai. The Applicant contends that at the time of filing the application dated 1st August 2025, Dr. Nzai had already completed cross-examination and re-examination and had been released by the Tribunal. I have perused the said application and note that the same did not seek additional time for cross-examination of Dr. Nzai. 4. Nevertheless, the Arbitrator proceeded to grant additional time for further cross-examination of the said witness. In my respectful view, that determination introduced into the proceedings a matter that had neither been pleaded nor submitted for determination before the Tribunal. 5. An Arbitral Tribunal derives its mandate strictly from the reference and the issues submitted before it by the parties. An arbitral award may be set aside where it determines disputes not falling within the terms of reference. 6. Accordingly, I am satisfied that the portion of the Interim Award granting additional time for cross-examination of Dr. Nzai falls afoul of Section 35(2)(a)(iv) of the Arbitration Act, as it dealt with a matter not contemplated by the parties and not arising from the application before the Tribunal. That portion of the Award is therefore liable to be set aside. 7. The Applicant has also sought recusal or substitution of the Arbitrator on grounds of alleged bias and procedural unfairness. Sections 13 and 14 of the Arbitration Act establish the procedure to be followed where a party seeks to challenge an arbitrator on grounds of impartiality or independence. Such challenge must first be raised before the Arbitral Tribunal itself. 8. In the present case the Applicant has not made a formal challenge before the Arbitral Tribunal and neither has the Arbitrator been given a chance to defend the issues raised. 9. Consequently, this Court lacks jurisdiction to entertain the issue of recusal at first instance. 10. In exercise of the Court’s jurisdiction and in order to uphold the principles of fairness and equality of arms under Section 19 of the Arbitration Act and Articles 27 and 50 of the Constitution, I partially set aside the Interim Award dated 21st October 2025. 11. Consequently, I make the following orders: 1. ***The portion of the Interim Award dated 21st October 2025 granting further cross-examination of Dr. Nzai is hereby set aside.*** 2. ***The portion of the Interim Award declining enlargement of time for the Applicant’s witness, Dr. Isabella Njeri, is hereby varied.*** 3. ***The Applicant’s witness, Dr. Isabella Njeri, shall have eight (8) hours for examination-in-chief and eight (8) hours for re-examination.*** 4. ***The period for cross-examination shall be allocated by the Arbitral Tribunal in a reasonable manner consistent with the principles of fairness and equality of arms under Section 19 of the Arbitration Act.*** 5. ***The prayer seeking recusal or substitution of the Arbitrator is declined.*** 6. ***The arbitral proceedings shall proceed before the current Arbitrator on priority basis.*** 7. ***Given that each party has partially succeeded, I direct that parties bear their own costs of the application.*** It is so ordered. **RULING** delivered virtually, dated and signed at **NAIROBI** This **14th** day of **May** 2026. **P.M. MULWA** **JUDGE** **In the presence of:** *Mr. Ngatia, SC* for Applicant *Ms. M’eruake* for Respondent Court Assistant*: Lispa*