https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7289

Nyoro Construction Company Limited v Kenya Rural Roads Authority (Miscellaneous Application E055 of 2025) [2026] KEHC 7289 (KLR) (Commercial and Tax) (26 May 2026) (Ruling) Neutral citation: [2026] KEHC 7289 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Miscellaneous Application E055 of 2025 BK Njoroge, J May 26, 2026 IN THE MATTER OF AN ARBITRATION Between Nyoro Construction Company Limited Applicant and Kenya Rural Roads Authority Respondent Ruling 1.This is a Ruling arising out of an application by the Applicant. It seeks the recognition of an Arbitral Award, adoption as judgment and enforcement of that judgment. Background Facts 2.The Applicant filed an Originating Notice of Motion dated 2nd July, 2026 seeking the following orders:1.That the Honourable Court be pleased to recognise and adopt as judgement and judgement be entered for the Applicant against the Respondent on the basis of the Arbitral Award published by the Sole Arbitrator Hon, Justice (Rtd.) Ringera dated 13th February 2025 and the further Award on Quantum of Costs dated 30th June 2025, being:a)Award sum of Claimant KES 552,1941999.46 to be paid within 30 days of the date of the Award, being 13th February 2025, together with simple interest at three percentage points above the lending rate issued by the Central Bank of Kenya on the date of publication of the Award, being 13th February 2025, up until date of payment.b)Costs of KES 1010961425.00 together with simple interest thereon at the rate of l4 % from the date of publication of the further Award, being 30th June 2025.2.That the costs of this Suit, Application be awarded to the Applicant. 3.The application is supported by the Affidavit of Josiah Njuguna sworn on 2.7.2025. He depones that there were contracts between the parties. This was for the construction of Mihuti-Kayu-Wenjerere-Rwathi [543] and Githiga-Kibutha-Kanyenyaini [523] Roads. The contracts provided for resolution of disputes arising by way of Arbitration. 4.That when a dispute arose it was referred to Hon. Justice (Retired) Aaron Ringera, as the Sole Arbitrator. After hearing the matter, he made an Award on 13.2.2025, awarding Kshs. Ksh.552,194,999.46 to the Applicant. This is together with simple interest at 30% points above the lending rates issued by the Central Bank of Kenya. This was to apply from the date of the Publication of the Award being 13.2.2025. 5.A further Award on quantum of costs was made on 30.6.2025. The Applicant was awarded Kshs.10,096,425.00 together with simple interest at the rate of 14% from the date of Publication of the Award. This date being 30.6. 2025. 6.It is on this basis that the Award was sought to be adopted. 7.The application is opposed. This is by way of a Replying Affidavit of Engineer Jackson Magondu sworn on 20.11.2025. 8.He deponed that parties entered into arbitration proceedings arising out of the dispute between them. During the arbitration, they reached a consent agreement dated 3.10.2024. They agreed on a principal amount of Kshs.170,159,370.66. 9.That the parties only proceeded to file submissions before the Arbitrator as the issue of interest on the principal amount. 10.It is on this amount that the Arbitrator made a final Award of Ksh.552,194,999.00. That this award comprised of the consented sum of Kshs. 170,159,37.66 and interest on the consented sum of Kshs.382,035,629.45. 11.The Respondent deponed that pursuant to Gazette Notice No. 297 of 14.1.2025, all awards in respect of arbitrations and Court awards were to be forwarded to the Pending Bills Committee. This was for approval after which the budget allocation and requisition would be made before payments would issue. 12.That the issue of this payment has been included in the Pending Bills for the Respondent. That these Pending Bills are to be forwarded to the Pending Bills Committee through the Ministry of Roads and Transport. 13.This scenario also applies to the issue of costs as awarded by the Arbitrator of Kshs.10,096,425/=. 14.The award on costs has been included in the Pending Bills. It is to be transmitted to the Pending Bills Committee. 15.For all intent and purposes, the Respondent is making active steps to settle the awards. 16.The Respondent raises a crucial issue that the Court will tackle in this ruling. That the Applicant neither attached the original copy of the arbitration agreement nor the certified copy thereof. 17.For that reason, the Applicant urged this Court to dismiss and/or strike out the application with costs. Issues for Determination 18.That Court has considered the application, the response, the submissions and the oral highlights by Counsel for the parties. The Court frames two issues for determination as follows:a.Whether the Court should recognize and adopt as a judgment the Arbitral Award dated 13th February, 2025 and the Further Award and Quantum of costs dated 30th June, 2025.b.Whether the judgment should be entered as against the Respondent in favour of the Applicant in terms with the two awards thereof. Analysis 19.The power of the Court to recognize, adopt and enter judgment, on a Domestic Arbitral Awards is set out in Section 36(1) of the Arbitration Act. The Section states 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.(2)An international arbitration award shall be recognised as binding and enforced in accordance to the provisions of the New York Convention or any other convention to which Kenya is signatory and relating to arbitral awards.(3)Unless the High Court otherwise orders, the party relying on an arbitral award or applying for its enforcement must furnish—(a)the original arbitral award or a duly certified copy of it; and(b)the original arbitration agreement or a duly certified copy of it. a) Whether the Court should recognize and adopt as a judgment the Arbitral Award dated 13th February, 2025 and the Further Award and Quantum of costs dated 30th June, 2025. 20.A perusal of the Replying Affidavit and the submissions in opposition as well as the oral highlights reveals that the awards are not denied. It is also not denied that parties went through and Arbitration process. The Court has not been notified of any application for setting aside the ensuing Awards, that is pending. 21.The Court follows the decisions of the Court in Christ for All Nations v Apollo Insurance Co. Ltd, [2002] 2 EA 366. The Court emphasized that once an arbitral award satisfies the threshold under Section 36 of the Arbitration Act, the Court is enjoined to recognize and enforce it. b) Whether the judgment should be entered as against the Respondent in favour of the Applicant in terms with the two awards thereof. 22.The Court notes that the Respondent has raised the issue of a missing certified copy of the Agreement, the subject of the Arbitration Agreement. 23.The Court is fully conversant with the requirements of Section 36(3) (b). This is on the furnishing to the Court, the original agreement or a certified copy of it. To this Court, the rationale behind this requirement is that a Court of law has to be satisfied as to the foundational basis of the arbitral process. This is prior to adopting the results or resolution of that process as a Judgement of the Court. 24.The Court is mandated to look at two (2) things. Firstly, whether the agreement the subject of the arbitral clause has been availed. Secondly, whether the Awards or certified copies thereof has been availed. 25.A perusal of the file neither shows any copies of the agreement nor the arbitral clauses. The Awards have not been challenged as they have been annexed to the application under consideration. 26.This Court has faced such scenarios in the past. It has declined to strike out or dismiss the application for recognition, adoption and enforcement. This is more so when there is no serious challenge as to the existence of the missing documents. More so when it is not submitted or alleged that they do not exist or that they were never signed. 27.With a view to progressing this matter forward, the Court follows the decision by Mshila J. in Said & another v Banda Homes Limited [2022] KEHC 14265 (KLR). This Court has also delivered a Ruling in Nyoro Construction Company Limited v Principal Secretary (PS) Ministry of Transport, Infrastructure, Housing, Urban Development, and Public Works (Miscellaneous Civil Application E078 of 2025) [2026] KEHC 3247 (KLR) (Commercial and Tax) (23 February 2026) (Ruling). The Court held as follows;“Though the awards sought to be enforced have been annexed to the affidavit in support of the application, the contract signed by the parties said to be dated 17th May 2012 was not annexed. This contract is said to contain the Arbitration clause. The Court has not seen the basic document upon which the Arbitral process was hinged upon. The law requires that the Court has sight of this mandatory documents. This is the requirement of Section 36 (2) (b) of the Arbitration Act.Unless the High Court otherwise orders, the party relying on an arbitral award or applying for its enforcement must furnish—13.The Court notes that in the past, Court would have proceeded to decline the orders sought.14.However, the Court is minded to exercise its discretion in the matter. The Section allows the Court to waive the requirement for production of the Awards and the Agreement itself. A case in point is if the parties are not in dispute as to the existence of the documents. However, good practice and procedure would dictate that these documents be availed to the Court so that they form part of the record. If the application is merited on the face of it, save for production of the documents, the Courts may decline to dismiss the application. Rather, the Courts may grant the Applicants an opportunity to avail the documents that are said to be missing. This being an issue of discretion, this is not a first-hand rule. Each case will be determined on its own unique facts and circumstances before the Court. The Court follows the decision of Mshilla J. in Said & another v Banda Homes Limited [2022] KEHC 14265 (KLR). The Court stated as follows;“The Applicant has annexed to the Summons a certified copy of the Final Arbitral Award (Annexture ‘AST-1’). However, the Applicant did not annex a copy of the Arbitral Agreement as required under Section 36(3)(b). The Applicant has therefore not met the conditions requisite for the recognition of the Arbitral Award. Findings and DeterminationIn light of the foregoing this court makes the following findings and determinations;i.The application is found to have merit and it is hereby allowedii.ii. The court hereby directs the Applicant to file the original Arbitration Agreement with the Court through Deputy Registrar Commercial & Tax Division within 14 days from the date hereof;iii.Upon compliance the order of recognition and enforcement of the Arbitral Award dated January 15, 2021 by Arbitrator Prof. Paul Musili Wambua shall be deemed to be granted.”15.In the case before the Court the application is not opposed. The Applicant should avail a certified copy of the contract dated 17th May 2012, before the Deputy Registrar of this Court through a Supplementary Affidavit, before any orders in favour of the Applicants are presented for confirmation.” 28.The Court will adopt the same stance and allow the application. The Applicant is granted Thirty (30) days to avail the missing agreements. In default the agreement with be struck out. 29.As to costs the same lie at the discretion of this Court. Costs are awarded to the Applicant. Determination 30.The Applicants application by way of an Originating Notice of Motion dated 2nd July, 2025 is allowed as follows:1.That the Court hereby directs the Applicants to comply with the provisions of Section 36 (3) (b) of the Arbitration Act within the next Thirty (30) days from the date hereof. This is by availing certified copies of the missing agreements said to contain the arbitral clauses for verification before the Deputy Registrar of the Commercial & Tax Division. Failure to do so within the stipulated time, the application shall stand struck out for noncompliance.2.That upon compliance with Order 1 above, the Honourable Court hereby recognises and adopts as judgement and judgement is hereby entered for the Applicant against the Respondent on the basis of the Arbitral Award published by the Sole Arbitrator Hon, Justice (Rtd.) Ringera dated 13th February, 2025 and the further Award on Quantum of Costs dated 30th June, 2025, being:a)Award sum of Claimant KES 552,194,999.46 to be paid within 30 days of the date of the Award, being 13th February, 2025, together with simple interest at three percentage points above the lending rate issued by the Central Bank of Kenya on the date of publication of the Award, being 13th February, 2025, up until date of payment.b)Costs of KES 10,096,425.00 together with simple interest thereon at the rate of l4 % from the date of publication of the further Award, being 30th June, 2025.3.That the costs of this Suit, Application are hereby awarded to the Applicant. 31.It is so ordered. DATED, SIGNED AND DELIVERED AT MILIMANI THIS 26TH DAY OF MAY, 2026.NJOROGE BENJAMIN K.JUDGEIn the presence of:Mr. Mutiso for the Applicant.Mr. Chesoro holding brief for Silvia Wameo for the Respondent.Ms. Susan Nzioka - Court Assistant.