https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7718

Nyamweya v Serveyah Ltd t/a Aluochier Dispute Resolution & 2 others (Civil Case E099 of 2025) [2026] KEHC 7718 (KLR) (Civ) (4 June 2026) (Ruling) Neutral citation: [2026] KEHC 7718 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Case E099 of 2025 JN Mulwa, J June 4, 2026 Between Hon Manson Onyango Nyamweya Petitioner and Serveyah Ltd t/a Aluochier Dispute Resolution Respondent and Maurice Murunga Osondwa t/a Mamuka Auctioneers 1st Interested Party Lempaa Vincent Suyianka 2nd Interested Party Ruling 1.Before the Court for determination is a Petition dated 25/03/2025 filed by Hon. Manson Onyango Nyamweya (hereafter the Petitioner/Applicant) seeking inter alia;a.That an order of injunction do issue restraining Serveyah Ltd t/a Aluochier Dispute Resolution (hereafter the Respondent) and Maurice Murunga Osundwa t/a Mamuka Auctioneers and Lempaa Vincent Suyianka (hereafter the 1st & 2nd Interested Party) from claiming, demanding or in any way seeking the amounts of money detailed in the impugned award dated and signed at Rongo on the 21/07/2024 by the Respondent.b.That a declaration issue declaring that the proceedings conducted by Isaac Aluochier, FCIArb and the award given on the 21/07/2024 are null and void ab initio as they violated the Petitioner’s constitutional rights and the same are quashed and or set aside.c.That an order of prohibition issue to the Respondent and the Interested Parties prohibiting the said Respondent and the Interested Party from carrying out any unlawful execution against the Petitioner using the impugned award issued on the 21/07/2024 as the execution violates the law and Petitioner’s constitutional rights.d.Damages for the violation of the Petitioner’s constitutional rightse.Costs of the suit. 2.The gist of the Applicant’s Petition is that he has never interacted with the Respondent in any capacity prior to being served with a proclamation of attachment, repossession, distraint for movable property. He goes on to say that the Respondent was not a lawfully and constitutionally established Tribunal clothed with jurisdiction to entertain the subject matter of the impugned award. 3.Further it is the Applicant’s case that there was no arbitration agreement between the Petitioner and the 2nd Interested Party to form the basis of appointment of the Respondent, as Arbitrator, therefore the appointment of the latter by the 2nd Interested Party was unconstitutional, illegal and void in the absence of an arbitral agreement or any other lawful appointment. 4.The Applicant goes on to state that despite the Respondent unlawfully constituting the arbitral Tribunal, he was never accorded an opportunity to be heard whereas the Respondent proceeded to render an award on 21/07/2024, and further failed to publish the same for his benefit. That he only became aware of the award when the 1st Interested Party sent the same to him in an attempt to execute the same. 5.He goes on to state that since he was not accorded fair hearing, the attachment of his property violates his constitutional right to be heard and property. Penultimately, he asserts that the 1st Interested Party's attempt to attach his property is unlawful without a valid decree of this Court. In conclusion, the Petitioner anchors his Petition on Article 22, 23(1) & (3), 47, 50(1), 159, 162, 165 & 258 of the Constitution and Section 4, 35(3) & 36 of the Arbitration Act. 6.The Respondent opposes the Petition by way grounds of opposition dated 02/04/2025 and 28/07/2025 on the premise -;a.That the Court is devoid of jurisdiction to grant the relief sought in the Petition that the arbitral award dated 21st July, 2024 by Arbitrator Isaac Aluochier, FCIArb, be set aside given that three (3) months have lapsed since the Petitioner received the award;b.That the doctrine of exhaustion and separation of constitutional and statutory remedies bars the Petitioner from invoking constitutional jurisdiction where a parallel statutory remedy exists but was not pursued in a timely manner;c.That there has been unreasonable delay in filing the Petition;d.That the Petition is sub judice;e.That the execution process alleged by the Petitioner to be in violation of the law is actually lawful and duly authorized by the Auctioneers Rules and Act; andf.That there has been no violation of the Petitioner’s constitutional rights either as to fair hearing or right to property. 7.The Petition was disposed of by way of written submissions, which the Court has duly considered alongside the rival material on record.That said, before coining the issues for determination, it is germane that I briefly set out the history of the matter. 8.At the outset, I note from the record that the Petition was first filed before the Constitutional and Human Rights (CHR) Division of the High Court as Nairobi HC. CHR. Petition No. E160 of 2025. On 08/04/2025, upon hearing oral representation from respective counsel for the parties, Mugambi, J. directed that the Petition be transferred to the High Court Civil Division for disposal, as it relates to Nairobi HC Civil Misc. Application No. E878 of 2024. 9.When the matter eventually came up before this Court on 01/07/2025, again, attention was drawn to Nairobi HC Civil Misc. Application No. E878 of 2024, on grounds that it gyrates over the same arbitral award published on 21/07/2024. 10.It is on the backdrop of the latter representation, that counsel appearing for the Petitioner, informed this Court from the bar, that the present matter essentially seeks to set aside the aforementioned arbitral award. 11.Directions were thus taken on disposal of the Petition by way of written submissions with a ruling reserved thereafter. 12.A ruling was eventually delivered in Nairobi HC Civil Misc. Application No. E878 of 2024 concerning the Respondent’s chamber summons dated 23/09/2024, which essentially sought to recognize and enforce the arbitral award published on 21/07/2024. The Court will address the same latter in this ruling. 13.When parties subsequently appeared before this Court on 12/02/2026, while intimation was made by counsel for the Petitioner that the present matter was purportedly consolidated with Nairobi HC Civil Misc. Application No. E878 of 2024, no such order and or direction was issued as can be gathered from the record of proceedings. However, there was consensus that the outcome in the Nairobi HC Civil Misc. Application No. E878 of 2024 would have material bearing to the instant Petition. 14.As a consequence of the forestated, this Court directed that parties acquaint themselves with the ruling in Nairobi HC Civil Misc. Application No. E878 of 2024 as they await a determination of the present Petition. It is on the backdrop of the above that the Petition now finds itself before me for determination. 15.Before conscientiously postulating the issues for determination, it necessitates that I draw the attention of the parties to the following facts. As earlier noted, despite the Petitioner presenting his grouse over the arbitral award published on 21/07/2024 as a Petition, Mugambi, J. aptly transferred the matter to this Court on the premise of its nexus to Nairobi HC Civil Misc. Application No. E878 of 2024. 16.While the Petitioner, through counsel, conceded from the bar, that the present matter fundamentally seeks to set aside the arbitral award published on 21/07/2024, the Petitioner did conform his pleadings to reflect the position and or his intent. 17.In light of the above, having considered the reliefs sought by the Petitioner what centrally presents for determination concerns-;1.Whether the Court ought to set aside the arbitral award published on 21/07/2024?2.Who ought to bear the costs? Whether the Court ought to set aside the arbitral award published on 21/07/2024? 18.It is trite that all things arbitration localize and operationalize around Article 159(2)(c) of the Constitution as read with the Arbitration Act. It is the latter statute that provides for the framework, modus and mechanisms within which a party may move the Court to have an arbitral award set aside. Upon the subsequent transfer of the Petitioner’s petition to this Court from the Constitutional and Human Rights (CHR) Division, the Petitioner opted and or failed to amend or conform his pleadings to reflect edicts of Section 35 of the Arbitration Act. 19.Section 35(1) of the Arbitration Act provides that recourse for setting aside an arbitral award to the High Court may be made, only by an application under Sub-section (2) & (3) thereof. Meanwhile, Order 51 Rule 1 of the CPR as read Section 2 of the CPA provides that all applications to the Court shall be by motion. 20.While the latter provision recognizes a petition as a pleading, and loosely stated would be a mode of application. If a party approaches the Court, I reasonably believe the legislative intent of Section 35(1) of the Arbitration Act does not equally encompass a petition as a modus and or form within which a party may move the Court to have an arbitral award set aside. In summary it would have been useful, if not prudent of the Petitioner, to present the instant proceedings by way of an application under notice of motion rather than a petition. 21.Nevertheless, disregarding the issue of form while purposefully addressing the substance of the matter, the scope within which this Court can and ought to interfere with and or set aside an arbitral award has been the subject of discussions and interpretation within our jurisdiction to which the obtaining position appears to have been settled. 22.Section 35(1) & (2) of the Arbitration Act provides that: -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; orii.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; oriii.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; oriv.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; orv.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; orvi.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; orii.the award is in conflict with the public policy of Kenya. 23.At this juncture, I must say, the Respondent has raised a raft of issues concerning the competency of the instant proceedings of which the Court will attempt to substantively address. 24.As earlier noted, in opposing the motion, the Respondent opted to file grounds of opposition only. The Court of Appeal in Blue Thaitian SRL (Owners of the Motor Yacht ‘Sea Jaguar’) v Alpha Logistics Services (EPZ) Limited [2022] KECA 1240 (KLR) succinctly observed that the effect of filing grounds of opposition in response to an application (here, Petition), confines a party to issues of law and legal arguments only. 25.To the foregoing end, by its grounds of opposition the Respondent has raised various legal hurdles concerning the instant proceedings. Firstly, the Respondent contends that the present matter is statute barred by dint of Section 35(3) of the Arbitration Act. The said provision mandates a party seeking to set aside an arbitral award to move the Court within three (3) months of -; receiving the arbitral award; or disposal of a request seeking correction and interpretation of the arbitral award/additional award. Noting that the Respondent opted to file grounds of opposition, such an objection concerning limitation presents as a factual issue, requiring proof that the Petitioner received the arbitral award; or the Tribunal disposed of a request seeking correction and interpretation of the arbitral award. 26.In any event, the Petitioner contends that he only became aware of the award when the 1st Interested Party sent the same to him in an attempt to execute the award. Therefore, in light of the factual nature of the argument and failure of the Respondent to discharge its burden on the said front, the argument is not well taken. 27.Secondly, concerning the Petitioner’s failure to exhaust statutory remedies, prior to presenting the instant matter, I believe the Court had earlier in part, addressed itself to the same. At the risk of repetition, the Arbitration Act clearly provides for the duration within which, the mode and manner a party seeking to set aside an arbitral award, ought to approach the Court.Here, the Petitioner opted to file a petition rather than a reference application to the High Court. In any event, the Petition was transferred to this Division for disposal, for obvious reasons. Whereas, earlier in this ruling the Court stated that it would opt to disregard the form while purposefully addressing the substance of proceedings, courtesy of Article 159 (2) (d) of the constitution. Similarly, on this front the Respondent’s contestation cannot be sustained. 28.And lastly, as to the question of sub judice, the ruling in Aluochier t/a Aluochier Dispute Resolution v Bule & 1987 others; Suyianka (Interested Party) (Miscellaneous Civil Application E878 of 2024) [2026] KEHC 727 (KLR) concerned the Respondent's application seeking recognition and enforcement of the arbitral award published on 21/07/2024. Therefore, the Respondent’s argument on sub judice cannot sustain, given that the latter proceedings have since terminated by way of dismissal of the Respondent’s application. As such, the instant proceedings cannot be considered to be sub judice. 29.Moving onto the crux of the matter, a perfunctory digest of the Petitioner’s arguments towards seeking to set aside the arbitral award published on 21/07/2024 anchor on the fact that-; there was no arbitral agreement between the parties to the arbitration therefore the arbitral proceedings were illegal and void; that the Tribunal was not clothed with jurisdiction to entertain the subject matter of the impugned award; and that the Petitioner was never accorded an opportunity to be heard, which arguments appear to anchor on Section 35(2)(a)(ii) & (iii) as read with Section 35(2)(b)(i) of the Arbitration Act. 30.With the above in reserve, this Court must remind itself of its role pursuant to Section 35 of the Arbitration Act. The Court of Appeal in Gachuhi & another v Evangelical Mission for Africa & Another; Law Society of Kenya (Interested Party) [2023] KECA 51 (KLR), fittingly set out the role of this Court as follows; -“It is plainly obvious that the learned Judge expressed himself rather broadly and expansively in the above extract, and to some extent lost sight of the character of the application before him. It is trite that in an application to set aside an arbitral award under Section 35 of the Arbitration Act, the court is not sitting on appeal from the merits of the decision of the Arbitral Tribuna…... If that were so, arbitral awards would be impeached and set aside on all manner of grounds outside the confines of Section 35 of the Arbitration Act. The decisions of the Supreme Court in Nyutu Agrovet Ltd v Airtel Networks Kenya Ltd & Another [2019] eKLR and Synergy Industrial Credit Ltd v Cape Holdings Ltd [2019] eKLR reaffirm the closed nature of the grounds for setting aside an arbitral award under Section 35.” 31.Concerning whether the arbitral award runs afoul to Section 35(2)(a)(ii) of the Arbitration Act it warrants restatement that where parties subject their dispute for resolution by way of arbitration, it involves consensus akin to a contract by contracting parties. The duty of this Court while adjudicating a dispute between contracting parties was succinctly settled in the of-cited decision of National Bank of Kenya Ltd vs Pipeplastic Samkolit (K) Ltd. Thus, while keeping in mind the latter dicta, contracting parties are always at liberty to delineate terms of engagement, which may include contracting on an arbitration clause. 32.Concerning the validity and or existence of an Arbitration agreement, it warrants reminder that where parties subject their dispute for resolution by way of arbitration, it involves consensus akin to a contract by contracting parties as held in the decision of National Bank of Kenya Ltd vs Pipeplastic Samkolit (K) Ltd. Thus, contracting parties are always at liberty to delineate terms of engagement, which may include contracting on an arbitration clause. 33.As to the nature of the such a clause, the Court of Appeal in Synergy Industrial Credit Limited v Cape Holdings Limited [2020] KECA 208 (KLR) while referencing in brief Section 17 of the Arbitration Act observed that: -“By dint of section 17 of the Arbitration Act, the arbitral agreement in a contract is an independent agreement, separate and independent from the other terms of the contract and a finding that the contract is void does not invalidate the arbitral agreement.” [emphasis mine] 34.Further, this Court in Aluochier t/a Aluochier Dispute Resolution v Bule & 1987 others; Suyianka (Interested Party) (Miscellaneous Civil Application E878 of 2024) [2026] KEHC 727 (KLR) while addressing the Respondent’s application for recognition and enforcement of the arbitral award published on 21/07/2024, sufficiently spoke on the matter. 35.This Court observed in part, that Section 2 of the Arbitration Act, Article 1, 2, 3(c) & 50(1) of the Constitution and Article 159(2)(c) of the Constitution, cannot transmute to be an arbitration agreement, that any person can unilaterally opt to have his or her dispute settled by way of arbitration in the absence of consensual and contractual acquiesces to subject their dispute to arbitration. The Court went on to conclude that;“24.Section 36(3) of the Arbitration Act is couched in mandatory terms. And it is apparent given this Court’s earlier rendition that the Applicant’s chamber summons is non-compliant with Section 36(3) (b), in the absence of an original arbitration agreement, the Court is of the view that the enforcement motion is incompetent for non-compliance with the provisions of Section 36(3) (b) of the Act.” 36.As to whether the arbitral award contravened Section 35(2)(a)(iii) of the Arbitration Act, I note the exhortation of the above provision is that the Applicant seeking to set aside an arbitral award ought to furnish proof that he was not given proper notice of the appointment an arbitrator, or of the arbitral proceedings, or was otherwise unable to present his case. Evidently the affidavit in support of the Petition falls short of furnishing any proof on the above save for the blanket accusation of lack of proper notice concerning the items serialized. 37.As to Section 35(2)(b)(i) of the Arbitration Act on whether a finding ought to be made that the subject-matter of the dispute was not capable of settlement by arbitration under the Laws of Kenya, a cursory perusal of the arbitral award published on 21/07/2024, shows that the 2nd Interested Party’s claim was anchored on provisions of Article 74, 97(1)(a), (b) & (c), 98(1)(a)(b)(c)&(d), 99(1)(b), 101(2)&(4)A, 103(1)(e), 193(1)(b), 194(1)(e) and 226(5) of the Constitution, Section 12A, 13(1)&(2) of the Leadership & Integrity Act, Section 19(3) of the Elections Act on what appears to be violation of the said constitutional provisions. 38.The award goes on to capture that the nature of injury caused to the 2nd Interested Party or to the public as pleaded by the former concerned –(a) theft (misappropriation) of public funds by way of salaries and other remuneration, (b) unlawful and wrongful occupation of legislative office that would have been occupied by Kenyans of integrity as provided for in the Constitution, and (c) disregard of the sovereign authority of the people of Kenya by assuming legislative office, following vacancy in the said offices before first taking or subscribing to the oath or affirmation of office, to wit, he thus sought various declarations and or mandatory actions as against One Thousand Nine Hundred and Eighty Eight (1988) Respondents. 39.Aside from the absurdity that there may have existed an arbitration agreement between the 2nd Interested Party and One Thousand Nine Hundred and Eighty-Eight (1988) Respondents, it is the Court’s reasoned deduction that the issues canvassed in the said claim, while may or may not have been justiciable, were certainly not arbitrable, given the constitutional questions and reliefs sought therein. 40.My understanding of Article 162(1), 163(4), 164(3), 165(3)(a), (d) & (4) and 258 of the Constitution reserves, dispute resolution concerning contravention or threat of contravention of the Constitution or contravention or threat of contravention of any legislation, as may be read with the Constitution, within the purview of superior Courts. 41.The latter position is fortified by the Supreme Court vide its rendition in Bia Tosha Distributors Limited v Kenya Breweries Limited & 6 Others [2023] KESC 14 (KLR) wherein the Court pronounced itself as thus-;104.“The jurisdiction of the arbitrator is limited by the appointing document and largely operates with the consent, cooperation and participation of the parties before it. This is commonly referred to as “party autonomy”. Breaches, violations and infringements of the Constitution do not fall within the jurisdiction of arbitrators and such breaches cannot be the basis of setting aside arbitral awards. We asserted this position in the case of Nyutu Agrovet Limited v Airtel Networks Kenya Limited; Chartered Institute of Arbitrators-Kenya Branch (Interested Party) SC Pet No 12 of 2016; [2019] eKLR”-(emphasis mine).(76)Reading each of the above provisions, alleged breaches of the Constitution cannot be properly introduced by way of an application to set aside an arbitral award. Breaches of the Constitution are properly governed by articles 165(3) and 258 of the said Constitution and cannot by litigation ingenuity be introduced for adjudication by the High Court by way of invocation of section 35 of the Arbitration Act.”105………….106.This court has insisted on the exhaustion of the local remedies in Albert Chaurembo Mumba & 7 others (sued on their own behalf and on behalf of predecessors and or successors in title in their capacities as the Registered Trustees of Kenya Ports Authority Pensions Scheme) v Maurice Munyao & 148 others (suing on their own behalf and on behalf of the Plaintiffs and other Members/ Beneficiaries of the Kenya Ports Authority Pensions Scheme SC Petition No3 of 2016 [2019] eKLR. This, however, refers to remedies set out in statutory provisions. The mandate of an arbitrator largely proceeds on the basis of the agreement by parties, and is mainly tasked with the resolution of a dispute as set out in the governing agreement. Where the dispute, however, transcends the commercial dispute, well into the constitutional sphere, as is the case before us, every person is free to access courts and have their day in court. As we see it, there is no tension between arbitration and enforcement of constitutional rights as distinct dispute resolution mechanisms. A court of law cannot turn a blind eye to alleged constitutional breaches in order to invoke the principle of party autonomy that binds parties to their agreements. This in itself does not mean that any person who sets out to petition the court alleging violation of fundamental rights and freedoms under the Bill of Rights must succeed, as cases are determined on their merits.107.It is now clear that the Court of Appeal, by overturning the ruling by the High Court, fell into error in more than one respect. This was by failing to appreciate and uphold that the dispute before the court related to breach of constitutional rights. In issuing the relief countermanding that was made by the High Court and by referring the matter to the arbitrator, and making a full and final determination on matters still pending before the High Court, the Court of Appeal fell into further error. We hereby correct those errors by overturning the Court of Appeal decision in its entirety…….” 42.I think without belaboring any further, the above decision addresses the question whether the arbitral award contravened Section 35(2)(a)(iii) of the Arbitration Act. While it is mandated by this Court to protect and uphold arbitration as a mode of dispute resolution, I do not accept as true that the legislative intent of the Act draws in constitutional or criminal matters as arbitrable disputes. 43.In totality and combined with the earlier finding that there was no arbitration agreement in existence, the arbitral award published on 21/07/2024, cannot in all fairmindedness be sustained. It is void alongside the attendant and subsequent actions by the Respondent or Interested Parties thereto. 44.On the question of damages, no evidence was led on the above regard. In any event, by the nature of proceedings under Section 35 of the Arbitration Act, the same is not envisioned and or awardable given the application of the said provision. Therefore, the claim for general damages is declined. Final disposition 45.In light of the above findings, the Petition succeeds in the following terms-i.An order of injunction hereby issues restraining Serveyah Ltd t/a Alouchier Dispute Resolution and Maurice Murunga Osundwa t/a Mamuka Auctioneers and Lempaa Vincent Suyianka from claiming, demanding or in any way seeking the amounts of money detailed in the impugned award dated and signed at Rongo on the 21/07/2024 by the Respondentii.A declaration hereby issues declaring that the proceedings conducted by Isaac Aluochier, FCIArb and the award given on the 21/07/2024 are null and void ab initio and the same is set aside.iii.An order of prohibition hereby issues to the Respondent and the Interested Parties prohibiting the said Respondent and the Interested Party from carrying out any unlawful execution proceedings against the Petitioner using the impugned award issued on the 21/07/2024, as the execution violates the law and Petitioner’s constitutional rights. 46.Finally, on costs, applying my mind to the provision of Section 27 of the Civil Procedure Act, I deem it fit that the costs of the Petition be borne by the Respondent to the Petitioner/Applicant.Orders accordingly. DELIVERED DATED AND SIGNED AT NAIROBI THIS 4TH DAY OF JUNE 2026.……………………….JANET MULWA.JUDGE