https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10731

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KERUGOYA** **MISCELLANEOUS APPLICATION NO. E112 OF 2024** **(CONSOLIDATED WITH MISCELLANEOUS APPLICATION NO E046 OF 2025)** **EDWIN GICHOBI NDATHI………………………………….……….…….APPLICANT** **VERSUS** **CONSLOG ENGINEERING SERVICES LIMITED.………………........RESPONDENT** **CONSOLIDATED WITH** **MISCELLANEOUS APPLICATION NO E046 OF 2025** **CONSLOG ENGINEERING SERVICES LIMITED ……….……………APPLICANT** **VERSUS** **EDWIN GICHOHI NDATHI…………….……………………………….RESPONDENT** **RULING** 1. This is a ruling on two consolidated applications respectively dated 29/11/2024 and 9/6/2025, the first seeking the enforcement of an arbitration award between the partes and the second leave of court to file an appeal out of time from the award and stay of execution of the award pending the hearing and determination of the appeal. Upon consolidation, the applicant in the application dated 29/11/2024 No. 112 of 2024 being the first application in time shall be referred to as ***“the applicant”*** and the respondent CONSLOG ENGINEERING SERVICES LIMITED who is the applicant in the second Application NO. E046 of 2025 shall be called ***“the respondent”*** in the Consolidated applications. 2. In the first application by Notice of Motion dated 29th November, 2024, Edwin Gichobi Ndathi seeks the specific orders as follows: * + 1. *That the Arbitrator’s final award made and published on 8th November, 2024 by sole arbitrator Eng. Odhiambo Aluoch, CEng, MIEK, FCIArb, be recognized, adopted and enforced as a decree of this Honourable Court.* 2. *That a Decree to reflect the orders of the Arbitrator.* 3. *That the costs of this application and entire suit be awarded to the Applicant.* The application is supported by the applicant’s affidavit sworn on 29/11/2024 pointing to the final award by the arbitrator published on 8/11/2024 and praying for an order to recognize, adopt and enforce the same as a decree of the Court. 1. The Company filed a Replying Affidavit sworn by its director Felix Gitonga Nthiga Mutuura on 10/6/2025 on intimating its intention expressed by a prior notice of appeal to the arbitrator and to an application for leave to file appeal out of time and its prayer for a stay of proceedings and execution of the decree pending appeal. The applicant filed a supplementary affidavit sworn on 16/6/2025 objecting that the company had three months in accordance with the Arbitration law to challenge the award, yet did not do so for almost five months and that *“the [company] respondent cannot appeal an arbitral award by filing a memorandum of appeal since the same is not provided for by the Arbitration law of Kenya.*” 2. The second application, which is a Chamber Summons dated 9/6/2025 is by the Company CONSLOG ENGINEERING SERVICES LIMITED with supporting affidavit sworn on 6/6/2025 by the company’s director in the same terms as its replying affidavit to the application of 29/11/2024, explaining the delay in filing the challenge/appeal against the Arbitrator’s determination of 8/11/2024 by the need to consider in consultation with its Counsel the and the lack of financial muscle to pay *‘the extravagant and exaggerated costs’* for typed proceedings of the arbitrator. The application seeks specific reliefs as follows: *“1. The application be certified as urgent.* *2. Service be dispensed with in the first instance.* *3. That this Honourable Court be pleased to stay the proceedings in Kerugoya High Court Miscellaneous Application No. E112 of 2024 pending the hearing and determination of this application.* *4. The Court be pleased to grant leave to the Applicant to appeal out of time against the Final Award made by Hon. Eng. Odhiambo on 8th November 2024 in the Arbitration Tribunal (Edwin Gichobi Ndathi versu Conslog Engineering Services Limited).* *5. The said leave do operate as a stay of Kerugoya High Court Miscellaneous Application No. E112 of 2024 pending the hearing and determination of the. Appeal.* *6. The costs of this application be provided for.* *7. Any other orders that meets the ends of justice.”* 1. There was no replying affidavit to the application of 9/6/2025 but the affidavit in support of the application of 29/11/2024 and the supplementary affidavit to the replying affidavit to that application must be taken to be the reply to the later application which is now consolidated with the earlier application. ***The applicant’s case*** 1. Edwin Gichobi Ndathi’s/applicant’s case is that the respondent, Mr. Morris and him entered into a joint venture agreement dated 28th May, 2019 in which the respondent was awarded a tender to carryout construction at different areas at Kerugoya County and we were to fund the said project and share profit or loss. It was agreed that as the 3 parties we shall share the profits. 2. The applicant avers that the respondent received payment to its bank account from the county government of Kerugoya and declined to share the profits as per the said agreement. Since in the said agreement they had agreed that upon any dispute be referred to arbitration he did the same. The dispute before the arbitrator was between the applicant and the respondent and both parties were heard. 3. Further, the applicant avers that the arbitrator Eng. Odhiambo Aluoch, CEng, MIEK, FCIArb made and published the final award on 8th November, 2024. He was awarded against the respondent Kshs 5,827,454.75/=, interest of Kshs 2, 988,765.83/= and cost. Lastly, the applicant wishes to enforce the award against the respondent and pray that the same be recognised, adopted and enforced as a decree of the court. ***The Respondent’s Case*** 1. The 1st Respondent deposed to a Replying Affidavit sworn on 10/6/2025 and avers that their company only learnt of the Final Award on 19th November, 2024 and he immediately instructed his Advocates to prepare a Notice of Appeal and the same was promptly filed with the Arbitrator. 2. The respondent avers that when his Advocates on record made a request for typed proceedings the costs quoted were too extravagant and exaggerated and the Respondent Company was unable to meet the costs due to financial strain. 3. The respondent avers that he was deliberating how to acquire evidence to prove that Carol Kirimi was a joint signatory in the KCB Bank Account he was heavily burdened with litigation by Samson Ngugi in Kerugoya High Court Miscellenous Application No. E056 OF 2024 (Samson Ngugi Kamau versus Conslog Engineering Services Limited) who is similarly working in Cahoots with the Applicant herein to frustrate him economically. 4. Further, the respondent avers that only recently did he receive this Application yet it is dated 29th November, 2024 and he avers that the Applicant was at all material times aware that he had prepared a Notice of Appeal, filed it with the Arbitrator and served the same upon him. He filed an application under certificate of Urgency seeking to have his Appeal filed and admitted out of time. 5. Lastly, it is in the interest of justice that the proceedings in this Miscellaneous Application be stayed pending the hearing and determination of his Appeal on its merits. ***Supplementary Affidavit*** 1. The Applicant deposed to a further Affidavit and avers that the respondent was aware of the arbitral award on 19th November, 2024 and for almost five months did not take any steps in challenging the same. One doesn’t need the proceedings to file an appeal within three months from the date of receiving the arbitral award. 2. Further, the applicant avers that an appeal against an arbitral award is on procedure only, but the annexed memorandum of appeal the respondent intends to appeal on facts hence has no merits. The respondent did agree to the arbitration process and willingly participated in the same and the issue of litigation with Samson Ngugi in Kerugoya High Court Miscellaneous Application E056 OF 2024 should not deter me from enjoying the fruits of the arbitral award. 3. Lastly, the applicant avers that the filing of a notice of appeal with the arbitrator doesn’t in anyway act as a stay to this application. The respondent cannot appeal an arbitral award by filing a memorandum of appeal since the same is not provided for by the Arbitration laws of Kenya. ***Applicant’s submissions*** 1. In written submissions dated 30/10/2025, the Applicant urged that the Respondent seeks leave to appeal the arbitral award out of time, with the intention to file a memorandum of appeal which is contrary to the provisions of Section 35 (1) of the Arbitration Act, which provides *“.......Recourse to the High Court against an arbitral award may be made only by an application for setting aside the award under subsections (2) and (3)...* 2. The Respondent was aware of the delivery of the arbitral award when it was delivered and did not file any application and took more than five months to file the application dated 9th June, 2025. The applicant urged that section 35(3) 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.”* 3. The Respondent has not given any reasonable ground as to why he did not apply for the arbitral award published on 8th November, 2024 by sole arbitrator Eng. Odhiambo Aluoch, CEng, MIEK, FCIArb, be set aside. 4. The applicant submits that the application dated 9th June, 2025 is an afterthought deterring the applicant an opportunity to have the said arbitral award enforced. The applicant filed the application dated 29th November, 2024 and the statutory provisions that govern enforcement of Award are found under Section 36 of the Arbitration Act provides that “*domestic arbitral award, shall be recognized as binding and, upon application in writing the High Court, shall be enforced subject to this section and section 37.”* 5. Lastly, it is submitted that the Respondent has confirmed to have received the arbitral award in November, 2024 did not file any application to set aside the same within 3 months or satisfy the award hence the application should be allowed. ***Respondent’s submissions*** 1. By written submissions dated 21/2/2026, the Respondent urged that the question as to whether a party may appeal against an arbitral award is answered in the affirmative. A party can do so under Section 39 of the Arbitration Act. They rely on the decided case of *Kenya Oil Company Limited & another v Kenya Pipeline Company* [2014] KECA 851 (KLR)where an appeal arose from the Judgment of the High Court (D. K. Musinga, J. (as he then was) and G. K. Kimondo J) delivered on 26 January 2012 by which the High court allowed the respondent's appeal against the appellants under section 39 of the Arbitration Act and set aside an arbitral award made on 10th December, 2009 in which the arbitrator awarded to the respondent. 2. The respondent submits on reason for not filing an Appeal on time and they have sufficiently addressed this question in the supporting Affidavit. A Notice of Appeal dated 19th November, 2024 was immediately filed and served upon the Applicant’s Counsel through her official email address. The Respondent then proceeded to request for typed proceedings but an exorbitant amount was charged and this stalled the preparation of the Record of Appeal hence it led to unreasonable delay as the Respondent was financially strained to cater for the costs. 3. Further, **it is urged that the main point of law that has directed the Applicant to prefer an appeal is the lack of production of the completion certificate from the County Government of Kirinyaga as its absence led to the arbitrator exceeding his jurisdictional mandate to grant an arbitral award based on an assumed completion date. In so doing, the Tribunal failed to consider material evidence on record and proceeded to make findings unsupported by evidence, thereby rendering the award irrational and contrary to public policy.** 4. The respondent relies on ***Nyutu Agrovet Limited versus Airtel Network Kenya Limited*** (2019) where, it is submitted, the Court emphasized that Section 39 allows for determination of preliminary points of law, promoting efficiency in arbitration. 5. Lastly, they submit that the prayer for enforcement of the Final Award made by Hon. Eng. Odhiambo on 8th November, 2024 in the Arbitration Tribunal between Edwin Gichobi Ndathi versus Conslog Engineering Services Limited) if allowed will only defeat the purpose for which the Applicant has filed an appeal. They submit that the proceedings in Kerugoya High Court Miscellaneous Application No. E112 of 2024 be stayed awaiting the outcome of this court’s determination on the Appeal. **Issues** 1. The issues for determination are as follows: 1. Whether the arbitral award made and published on 8th November, 2024 should be recognized, adopted and enforced as a decree of this Court. 2. Whether the Respondent should be granted leave to appeal and/or challenge the arbitral award out of time. 3. Whether proceedings in *Kerugoya High Court Miscellaneous Application No. E112 of 2024* should be stayed. **Analysis** ***Whether the arbitral award should be recognized and enforced*** 1. Section 36(1) of the Arbitration Act provides for enforcement of domestic arbitral awards, as here, as follows: ***“36. Recognition and enforcement of awards*** *(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*](https://new.kenyalaw.org/akn/ke/act/1995/4/eng%402022-12-31#part_VII__sec_37)*.”* The Applicant has annexed the arbitral award and the arbitration agreement in compliance with Section 36(3) of the Arbitration Act**.** 1. The Court’s role at the enforcement stage is deliberately limited. Courts are not permitted to re-open the merits of the arbitral dispute. In ***Nyutu Agrovet Limited v. Airtel Networks Kenya Limited & Another*** [2019] eKLR (***Nyutu*** *case*), the Supreme Court reaffirmed the principle that arbitral awards are final and binding save in the limited circumstances expressly provided under the Arbitration Act. 2. Section 35 of the Arbitration Act Cap. 49, which provides for the setting aside of arbitration awards as follows: *“****35. Application for setting aside arbitral award*** *(1)* ***Recourse to the High Court against an arbitral award may be made only by an application for setting aside the award under subsections (2) and (3).*** *(2)* ***An arbitral award may be set aside by the High Court only if****—* *(a) the party making the application furnishes proof—* *(i) that a party to the arbitration agreement was under some incapacity; or* *(ii) the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication of that law, the laws of Kenya; or* *(iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or* *(iv) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the reference to arbitration or contains decisions on matters beyond the scope of the reference to arbitration, provided that if the decisions on matters referred to arbitration can be separated from those not so referred, only that part of the arbitral award which contains decisions on matters not referred to arbitration may be set aside; or* *(v) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless that agreement was in conflict with a provision of this Act from which the parties cannot derogate; or failing such agreement, was not in accordance with this Act; or* *(vi) the making of the award was induced or affected by fraud, bribery, undue influence or corruption;* *(b) the High Court finds that—* *(i) the subject-matter of the dispute is not capable of settlement by arbitration under the law of Kenya; or* *(ii) the award is in conflict with the public policy of Kenya.* ***(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 High Court, when required to set aside an arbitral award, may, where appropriate and if so requested by a party suspend the proceedings to set aside the arbitral award for such period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the opinion of the arbitral tribunal will eliminate the grounds for setting aside the arbitral award.* *[Act No. 11 of 2009, s. 26.]”* 1. The Court may refuse to enforce an award on the grounds set out in section 37 of the Act as follows: *“****37. Grounds for refusal of recognition or enforcement*** ***(1) The recognition or enforcement of an arbitral award, irrespective of the state in which it was made, may be refused only—*** *(a) at the request of the party against whom it is invoked, if that party furnishes to the High Court proof that—* *(i) a party to the arbitration agreement was under some incapacity; or* *(ii) the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication of that law, under the law of the state where the arbitral award was made;* *(iii) the party against whom the arbitral award is invoked was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or* *(iv) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the reference to arbitration, or it contains decisions on matters beyond the scope of the reference to arbitration, provided that if the decisions on matters referred to arbitration can be separated from those not so referred, that part of the arbitral award which contains decisions on matters referred to arbitration may be recognised and enforced; or* *(v) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties or, failing any agreement by the parties, was not in accordance with the law of the state where the arbitration took place; or* *(vi) the arbitral award has not yet become binding on the parties or has been set aside or suspended by a court of the state in which, or under the law of which, that arbitral award was made; or* *(vii) the making of the arbitral award was induced or affected by fraud, bribery, corruption or undue influence;* *(b) if the High Court finds that—* *(i) the subject-matter of the dispute is not capable of settlement by arbitration under the law of Kenya; or (ii) the recognition or enforcement of the arbitral award would be contrary to the public policy of Kenya.* *(2) If an application for the setting aside or suspension of an arbitral award has been made to a court referred to in subsection (1)(a)(vi), the High Court may, if it considers it proper, adjourn its decision and may also, on the application of the party, claiming recognition or enforcement of the arbitral award, order the other party to provide appropriate security.* *[Act No. 11 of 2009, s. 28.]”* 1. The Respondent has not demonstrated any of the grounds set out under Section 35 (2) and 37 of the Arbitration Act that would justify, respectively, the setting aside or refusal of enforcement of the award. Indeed, the Respondent’s case is not aligned to the procedure for setting aside under section 35 of the Arbitration Act but seeks to appeal from the award, having as it was urged considered the procedure for review against the pursuit of an appeal, the exercise which caused a delay in preferring an appeal. 2. The allegations that the arbitrator erred in fact or law as set out in the Memorandum of Appeal attached to the application for extension of time to appeal do not, by themselves, constitute grounds for refusing enforcement. Indeed, as held by ***Kenya Oil Company & Another v. Kenya Pipeline Company*** [2014 KECA 851 [KLR] cited by the Respondent, the appeal may, where applicable, be against **matters of law** only, as follows: 3. *“On appeal, the High Court held that it had jurisdiction based on the agreement of the parties under clause 2 of the agreement appointing the arbitrator and section 39 of the Arbitration Act to “look at the merits of the arbitrator’s award and make appropriate orders in terms of section 39(2)(b) of the [Arbitration] Act.”* 4. ***Having regard to clause 2 of the agreement appointing the arbitrator and section 39 of the Arbitration Act there is no doubt in our minds that the High Court had the mandate to entertain an appeal from the arbitral award. Clause 2 of the agreement and section 39 of the Act did not however give the High Court the mandate, carte blanche, to interfere with findings of fact made by the arbitrator. The mandate was restricted to points of law. We do not, for instance, consider that the High Court could rightly interfere with the findings, principally findings of fact, by the arbitrator on the basis of which the arbitrator found that liability against the respondent was established.*** *Before reaching his findings on liability, the arbitrator had at his disposal, as is evident from the award, material that was not available to the High Court or to this Court.* 5. *Having said that, we are persuaded that the High Court was right to interfere with the arbitrator’s award of damages as, in our view, the arbitrator fell into an error of law in his consideration of the question of the measure of damages to award.”* 6. Having reviewed the award and the material before Court, there is, prima facie, no evidence that the arbitral process violated the law, exceeded jurisdiction, or offended public policy. ***Whether leave should be granted to appeal out of time*** 1. The Respondent seeks leave to challenge or appeal against the arbitral award out of time and for co-extensive stay of execution and proceedings towards enforcement of the arbitration award pending the hearing of the intended appeal. 2. Section 35(3) of the Arbitration Act 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.***” 1. The applicant submits that the respondent confirms to have received the arbitral award in November, 2024 did not file any application to set aside the same within 3 months or satisfy the award. 2. To be sure, the Respondent does not seek to file an application for setting aside under section 35 of the Arbitration Act. By its director’s Replying Affidavit sworn on to the application for enforcement of the awarded dated 29/11/2024 the Respondent company states as follows: *“a.* ***THAT Hon. Eng. Odhiambo*** *delivered a Final Award in Nairobi* *Arbitration Tribunal (Edwin Gichobi versus Conslog Engineering* *Services limited) on 8th November 2024.* *b.* ***THAT*** *the Respondent Company only learnt of the Final Award on19th November 2024 and I immediately instructed my Advocates to prepare a Notice of Appeal and the same was promptly filed with the Arbitrator.* ***(annexed herein and marked FGNla is a copy*** *of the* ***Notice of Appeal and marked as FGN 1b are*** *email* ***correspondents demonstrating filing and service).*** ***c. THAT the I also read through the Final Award and sought legal advice on whether it would be more suitable to file an Application for Review or whether it was more preferable to file an Appeal bearing in mind that crucial evidence had not been presented .*** *d.* ***THAT*** *when my Advocates on record made a request for typed* *proceedings the costs quoted were too extravagant and exaggerated and the Respondent Company was unable to meet the costs due to financial strain.(* ***annexed herein and marked FGN2a are*** *email* ***correspondences on costs of obtaining typed proceedings and marked as FGN2b is the invoice).*** ***e. THAT when it became clear that the only channel of expressing my dissatisfaction with the decision of the Arbitrator was by way of an Appeal as opposed to a Review, the time for appeal had run out.”*** 1. The Respondent sought to appeal the decision. There is, consequently, no occasion for the court to consider the possibility, or otherwise, of extension of the three months period permitted for an application under the section 35 (3) of the Arbitration Act. ***Right of appeal from arbitration award*** 1. The Respondent submits that a party can appeal an arbitration final award under Section 39 of the Arbitration Act, and cites ***Kenya Oil Company Limited & another v Kenya Pipeline Company*** [2014] KECA 851 (KLR)where an appeal arose from the Judgment of the High Court (D. K. Musinga, J. (as he then was) and G. K. Kimondo J) delivered on 26 January 2012 by which the High court allowed the respondent's appeal against the an arbitration award under section 39 of the Arbitration Act and set aside an arbitral award made on 10th December, 2009 in which the arbitrator awarded to the respondent damages for loss. 2. The Court of Appeal in the ***Kenya Oil Company*** case properly guided as follows: 3. *“Having considered the appeal and the submissions by counsel, we take the following view. The Arbitration Act, 1995 adopted the Model Law on International Commercial Arbitrations that was adopted in 1985 by the United Nations Commission on International Trade Law (UNCITRAL)**[[1]](https://new.kenyalaw.org/akn/ke/judgment/keca/2014/851/eng%402014-01-31%22%20%5Cl%20%22_ftn1%22%20%5Co%20%22). In addition to improving, simplifying and harmonizing practices in international commercial arbitration, the Act recognizes the principle of party autonomy and limits the role of the courts in commercial arbitration.* 4. *The principle of party autonomy underpinning arbitration is premised on the platform that provided it does not offend strictures imposed by law, parties in a relationship have the right to choose their own means of resolving disputes without recourse to the courts or by limiting the circumstances under which recourse to the courts may be had.* 5. *Against that background, the parties in this appeal chose arbitration as the means by which they would resolve disputes between them. They also chose, as noted earlier, to reserve in express terms, a specific role for the court in the following terms: “the parties shall be at liberty to make application to a court to determine any question of law arising in the course of the arbitration and to prefer an appeal to a court on any question of law arising out of the award.”* 6. *The parties envisaged that there might be need, in the course of arbitration, to frame and refer questions of law to the court for determination or to appeal to court the decision of the arbitrator upon conclusion of the reference. Invoking that provision in the agreement and section 39 of the Arbitration Act, the respondent after the conclusion of the reference and the rendering of the award successfully appealed the award to the High Court.* 7. *In addressing the question whether the High Court erred in its appreciation and application of section 39 of the Arbitration Act in allowing the respondent’s appeal from the arbitral award, we think the principles discussed in the case of****Geogas S. A v Trammo Gas Ltd (The “Baleares”)****offer useful guidance. In that case, as is the case here, the question arose as to whether it was permissible to review as an error of law a finding of fact by arbitrators, which is challenged on the ground that there was no evidence to support it.* 8. *The court in that case was dealing with an appeal under section 1 of the English Arbitration Act, 1979. It is necessary to quote at length the words of Lord Justice Steyn, who, while addressing the limits of the jurisdiction of the court hearing an appeal under that Act, had this to say:* *“****The arbitrators are the masters of the facts. On an appeal the court must decide any question of law arising from an award on the basis of a full and unqualified acceptance of the findings of fact of the arbitrators. It is irrelevant whether the Court considers those findings of fact to be right or wrong. It also does not matter how obvious a mistake by the arbitrators on issues of fact might be, or what the scale of the financial consequences of the mistake of fact might be. That is, of course, an unsurprising position. After all, the very reason why parties conclude an arbitration agreement is because they do not wish to litigate in the courts. Parties who submit their disputes to arbitration bind themselves by agreement to honour the arbitrators’ award on the facts. The principle of party autonomy decrees that a court ought never to question the arbitrators’ findings of fact****.”* 1. *The principle captured by Lord Justice Steyn in that passage in relation to section 1 of the English Arbitration Act is in our view applicable under section 39 of our Arbitration Act. In effect having agreed to submit their disputes to arbitration, the parties to this appeal must accept and honour the result of the arbitrator’s findings of fact.* *Lord Justice Steyn went on to emphasize the need for the court to be constantly vigilant to ensure that attempts to question or qualify the arbitrator’s finding of fact, or to dress up questions of fact as questions of law, are carefully identified and firmly discouraged.* 1. *Concerning the critical matter of whether a question of law on which the arbitrators erred was identified in that case, it is again necessary to quote at length the words of Justice Steyn. He stated:* *“****It is often difficult to decide what is a question of law, or a question of mixed law and fact, rather than a pure question of fact. In law the context is always of critical importance. The enquiry “is it a question of law” must therefore always be answered by the counter enquiry “for what purpose?”. What is a question of law in a judicial review case may not necessarily be a question of law in the field of consensual arbitration. In short the closest attention must always be paid to the context in order to decide whether a question of law arises. Given the fact that the resolution of this preliminary issue determines whether the court has jurisdiction to substitute its view for the view of the tribunal, freely chosen by the parties of full contractual capacity, there is in my view no sensible reason for adopting an enlarged view of what constitutes a question of law****.”* 1. *In****Geogas S A vs. Trammo Gas Ltd****and the decision of this Court in the case of****Bashir Ahmed Butt vs. Uwais Ahmed Khan****on which the High Court relied when interfering with the arbitral award. In****Geogas S A vs. Trammo Gas Ltd****, the English Court of Appeal was concerned with the question of the jurisdiction of the court when dealing with an appeal, on a question of law, under section 1 of the Arbitration Act, 1979. In the case before us, the High Court relied on the principles enunciated by this Court in****Bashir Ahmed Butt vs. Uwais Ahmed Khan****regarding the circumstances under which an appellate court might disturb an award of damages by a lower court, and concluded that on application of those principles, the arbitrator had made errors of law in the award of damages.* 2. *Given that context, we are not persuaded by the submission by counsel for the appellants that there is an inconsistency between the two decisions. (Decision by the English Court of Appeal).* 3. *Counsel for the appellants also drew our attention, to the English case of****Vinava Shipping Co. Ltd v Finelvet A.G (The “Chrysalis”) [1983] 1 Lloyd’s L.R 503****in which Mr. Justice Mustill of the Queen’s Bench division, when dealing with an appeal from an interim arbitral award, suggested how an award can be shown to be wrong in law. He proposed that the arbitrator’s reasoning process should be divided into three stages. First, that the arbitrator ascertains the facts by making findings on any facts in dispute. Secondly, the arbitrator ascertains the law and thirdly the arbitrator reaches a decision in light of the facts and the law. In his view, the second stage of ascertaining the law is the proper subject matter of an appeal. He stated that:* *“****The second stage of the process is the proper subject matter of an appeal under the 1979 Act. In some cases an error of law can be demonstrated by studying the way in which the arbitrator has stated the law in his reasons. It is, however, also possible to infer an error of law in those cases where a correct application of the law to the facts found would lead inevitably to one answer, whereas the arbitrator arrived at another: and this can be so even if the arbitrator has stated the law in his reasons in a manner which appears to be correct-for the court is then driven to assume that he did not properly understand the principles which he had stated****.”* 1. *We find the above pronouncements by Lord Justice Steyn and Mr. Justice Mustill persuasive. An enquiry as to whether questions of law were raised before the High Court and whether the decision of the High Court was based on issues of law therefore requires consideration. In other words were there, in the matter before us, questions of law before the High Court on the basis of which the High Court could interfere with the arbitrator’s award?....”* *No general right of appeal from arbitration awards* 1. The contention by the applicant that the only way of approaching the Court is under an application to set aside under section 35 of the Arbitration Act is incorrect. In the case of **domestic arbitration**, the Arbitration Act makes an exception allowing referral to court on appeal under section 39 of the Arbitration Act as follows: *“****39. Questions of law arising in domestic arbitration*** ***Where in the case of a domestic arbitration, the parties have agreed that****—* *(a) an application by any party may be made to a court to determine any question of law arising in the course of the arbitration; or* ***(b) an appeal by any party may be made to a court on any question of law arising out of the award, such application or appeal, as the case may be, may be made to the High Court.*** ***(2) On an application or appeal being made to it under subsection (1) the High Court shall—*** ***(a) determine the question of law arising;*** ***(b) confirm, vary or set aside the arbitral award or remit the matter to the arbitral tribunal for re-consideration or, where another arbitral tribunal has been appointed, to that arbitral tribunal for consideration.*** *(3) Notwithstanding sections 10 and 35 an appeal shall lie to the Court of Appeal against a decision of the High Court under subsection (2)—* *(a) if the parties have so agreed that an appeal shall lie prior to the delivery of the arbitral award; or* *(b) the Court of Appeal, being of the opinion that a point of law of general importance is involved the determination of which will substantially affect the rights of one or more of the parties, grants leave to appeal, and on such appeal the Court of Appeal may exercise any of the powers which the High Court could have exercised under subsection (2).* *(4) An application or appeal under this section shall be made within the time limit and in the manner prescribed by the Rules of Court applicable, as the case may be, in the High Court or the Court of Appeal.* *(5) When an arbitral award has been varied on appeal under this section, the award so varied shall have effect as if it were the award of the arbitral tribunal concerned.* *[Act No. 11 of 2009, s. 29.]”* 1. It is clear that the Arbitration Act does not provide for a general right of appeal against arbitral awards unless parties in a domestic arbitration, have **expressly reserved such right under Section 39 of the Act.** The agreement may relate to right to approach the court in the course of an arbitration by way of **an application** under section 39 (1) (a) or upon an award by way of **an appeal** under section 39(1) (b) of the Act. No such agreement has been demonstrated before this Court. 2. In the ***Kenya Oil Company*** case relied on the Respondent company, there was an express stipulation in Arbitration Agreement (Clause 22.0) for reference to Court by an application in the course of the arbitration and by appeal on a question of law arising out the award, as observed in **paragraph 11 of the Judgment,** as follows: *“11. Clause 22.0 of the agreement, the parties made provision for reference of disputes arising under the agreement to arbitration. By an agreement dated 12th June 2009 the parties appointed Mr. Ahmednassir Abdullahi (the arbitrator) as sole arbitrator to finally determine the liabilities or otherwise of the parties in relation to the disputes or differences under the agreement. The agreement to appoint the arbitrator contained a provision that****“the parties shall be at liberty to make application to a court to determine any question of law arising in the course of the arbitration and to prefer an appeal to a court on any question of law arising out of the award.”*** 1. In the present case, however, the arbitration Clause in the Joint Venture Agreement between the parties **Conslog Engineering Services Ltd** and **Edwin Gichobi Ndathi** dated 28th May 2019 at SECTION TEN provides expressly as follows: ***“SECTION TEN*** ***ARBITRATION*** ***Any matter in dispute, and which is not provided for in this agreement, shall first be discussed by the four before proceeding to any other level. If an agreement is not reached after the matter is discussed, it will be referred to the client for deliberation. In case an agreement is not reached, any party can refer the matter for arbitration as per the laws of Kenya.”*** 1. There is, clearly, **no agreement** in this case to approach the Court for determination of any question of law in the course of the arbitration or to refer arbitration award to Court by an appeal on any question of law arising out of the award, and section 39 of the Arbitration Act does not apply. 2. Consequently, there is no right of appeal to the High Court in the matter and Respondent’s application for leave to appeal and/or challenge the award out of time lacks merit. ***Whether proceedings in Kerugoya HCMISCCC No. E112 of 2024 should be stayed*** 1. The prayer for stay of proceedings and execution of the award was premised upon the intended appeal from the arbitral award. 2. Having found that there is no provision for a competent challenge against an award by extension of the timelines stipulated by Section 35(3) of the Arbitration Act, and that section 39 of the Act does not apply to the present case, there exists no legal basis upon which stay orders may issue. **Conclusion** 1. In conclusion, the Applicant’s application for recognition and enforcement of the arbitral award is merited because the respondent did not file its challenge within the three month period permitted under section 35 (3) of the Arbitration Act; the explanation for the delay in filing an appeal, though perhaps reasonable on account of financial constraints, is to no avail as there is in the circumstances of the Arbitral agreement in this case no right of appeal pursuant to section 39 of the Act; and there has not been demonstrated, and it is not sought to demonstrate, any of the circumstances which vitiate an arbitral award under section 35 (3) of Arbitration Act. 2. The position of the Court in this matter is consistent with the duty to respect and promote party autonomy giving arbitration decisions the finality sought by the parties to the arbitration agreement as identified and underlined by the Supreme Court in the trilogy of arbitration cases of ***Geo Chem Middle East v. Kenya Bureau of Standards,*** SC Petition No. 47 of 2019, [2020] eKLR ***(Geo Chem Middle East*** *case****); Nyutu Agrovet Limited v. Airtel Networks Kenya Limited & Another*** [2019] eKLR (***Nyutu*** *case*) and ***Synergy Industrial Credit v. Cape Holdings Ltd*** [2019] eKLR. (***Synergy*** *case****)***, cited in Supreme Court APPLICATION NO. 5 OF 2021 (E007 OF 2021) ***CAPE HOLDINGS LIMITED V. SYNERGY INDUSTRIAL CREDIT LIMITED*** of 8/10/2021, as follows: *“****[23]*** *The legal position as regards this Court’s jurisdiction to hear and determine appeals arising from a Section 35 of the Arbitration Act Judgment of the High court was settled in the* ***Geo Chem Middle East Case,*** *wherein this Court found as follows:* *“41. Having so stated,* ***we must reiterate that arbitration is meant to expeditiously resolve commercial and other disputes where parties have submitted themselves to that dispute resolution mechanism. The role of Courts has been greatly diminished notwithstanding the narrow window created by Sections 35 and 39 of the Act. To expect arbitration disputes to follow the usual appeal mechanism in the judicial system to the very end would sound a death knell to the expected expedition in such matters and our decisions in Nyutu and Synergy should not be taken as stating anything to the contrary.*** *In this regard, one issue we did not pronounce ourselves on in the* ***Nyutu*** *and* ***Synergy*** *decisions, is whether a further appeal lies to this Court from a determination by the Court of Appeal.* ***For the avoidance of doubt, we now declare that in conformity with the principle of the need for expedition in arbitration matters, where the Court of Appeal assumes jurisdiction in conformity with the principle established in these two decisions, and delivers a consequential Judgment, no further appeal should ordinarily lie therefrom to this Court****.”* ***[24]*** *We reiterate our holding in the* ***Geo Chem Middle East Case*** *and find that this Court lacks jurisdiction to entertain this appeal as it is challenging the Court of Appeal judgment, where the Court of Appeal assumed jurisdiction in conformity with the principles established in the* ***Nyutu*** *and* ***Synergy*** *decisions and delivered a consequential Judgment.”* Such is the restricted nature of the right of appeal from arbitration awards in Kenya. 1. The Respondent’s application by Chamber Summons dated 9/6/2025 for leave to appeal against the arbitral award out of time lacks merit. The Court finds that the arbitral award herein qualifies for recognition and enforcement in terms of section 36 of the Arbitration Act, and the application by Notice of Motion dated 29/11/2024 shall be granted. **ORDERS** 1. Accordingly, for the reasons set above, the Court finds merit in the application dated 29/11/2024 for enforcement of the arbitration award of 8/11/2024 and it is granted as prayed. 2. The Respondent’s counter application dated 9/6/2025 for extension of time to appeal the arbitral award and for stay of execution/proceedings pending hearing and determination of the intended appeal is declined. 3. The Respondent shall pay to the appellant the costs of the consolidated application. *Orders accordingly.* **DATED AND DELIVERED THIS 14TH DAY OF MAY 2026.** **EDWARD M. MURIITHI** **JUDGE** **APPEARANCES:** Ms. Ng’ang’a instructed by M/S Kanyi, Koge & Co. Advocates for the Applicant. Ms. Wambui Gitau instructed by M/S Wambui Gitau Associates, Advocates for the Respondent.