https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11696

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **COMMERCIAL & TAX DIVISION** **MISC. APPLICATION NO. 742 OF 2008** **PINNACLE PROJECTS LIMITED..................................................APPLICANT** **VERSUS** **DICKSON MATU....................................................................RESPONDENT** **RULING** 1. The Applicant filed the Chamber Summons dated 17th December, 2025 seeking the following orders: 2. *The Arbitral Award published on 5th September, 2008 between the Applicant and Respondent be recognized, adopted and enforced as a decree of the Court.* 3. *Leave be granted to the Applicant to enforce the Arbitral Award published on 5th September, 2008 as a decree of this court.* 4. *Costs of this Application be provided for.* 5. The Application was supported by the Affidavit of **Frank Nyamari**. He stated that an arbitral award dated 8th September, 2008 was issued in the Applicant’s favour for Kshs. 3,974,413, together with interest at 9% per annum if unpaid within 30 days. It was subsequently filed in Court on 7th October, 2008. Although the High Court partially set aside the award on 30th January, 2009, the Court of Appeal, in its judgment of 22nd October 2021, reinstated the award in full. It also dismissed the Respondent's application to set it aside, thus, rendering the award final, binding, and enforceable. application to set it aside, thus rendering the award final, binding, and enforceable. The Applicant contended that, despite demand, the Respondent has failed to satisfy the award without lawful justification. It therefore urged the Court to recognise, adopt, and enforce the arbitral award as a decree of the Court. This is pursuant to **Sections 36** and **37 of the Arbitration Act**. 6. In response, the Respondent filed the Preliminary Objection dated 16th February, 2026 on the following points of law: 7. *That the Application is fatally defective for want of compliance with the mandatory provisions of Section 36 (3) of the Arbitration Act.* 8. *That therefore the instant application should be struck out with costs to the Respondent.* **Issues for determination** 1. The Court has considered the Application, the Preliminary Objection raised, the written submissions as well as the oral highlights by Counsel for the parties. The Court frame the following issue for determination: 2. *Whether the Preliminary Objection is merited.* **Analysis** 1. It was the Respondent’s submission that the enforcement application herein is premature as it contravenes **Section 36(3) of the Arbitration Act.** This is in view of the fact that the Applicant has not filed the Original Arbitration Agreement or the Arbitral Award in this Court. 2. In contrast, the Applicant maintained that it has fully complied with **Section 36(3)(a) of the Arbitration Act**. This is as the original arbitral award was filed in Court on 7th October, 2008. That the Respondent does not dispute that the copy produced corresponds with the original. Further, the existence of the arbitration agreement is not contested. That the Respondent is only alleging a possible scanning error regarding missing pages. In any event, the Respondent previously relied on and annexed the same arbitration agreement in an application filed on 9th December, 2009 to enforce part of the award. The Court was urged to take judicial notice of that record under **Section 60 of the Evidence Act**, thereby confirming the parties' agreement to arbitrate. 3. The Respondent pointed out that **Section 36 (3) of the Arbitration Act** provides as follows *(underlined emphasis ours)*: ***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.*** 1. The existence of the Arbitral Award is not in dispute and the Respondent only takes issue with the furnishing of the award or a certified copy of it to the Court. 2. This issue has been addressed in other cases such as ***Said & another v Banda Homes Limited [2022] KEHC 14265 (KLR)*** and ***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 (3) (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, it 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 and it did not meet the conditions requisite for the recognition of the Arbitral Award. Findings and Determination*** ***In light of the foregoing, this court makes the following findings and determinations;*** ***i. The application is found to have merit, and it is hereby allowed*** ***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.”*** 1. **Section 36 (3) of the Arbitration Act** provides that *“Unless the High Court otherwise orders*……” This gives room for the Court to make any such further orders as may be necessary in dealing with an application for adoption and recognition of the arbitral award. In line with this provision, the Court declines to strike out or dismiss the application for recognition, adoption and enforcement. The existence of the arbitral award as well as the agreement is not in dispute; therefore, the Applicant still has a chance to provide the arbitral agreement, and if some pages were missed during the scan, the same can still be availed. 2. The Court notes that it is called upon to exercise its discretion, such as by the provisions of **Section 36 (3) of the Arbitration Act**. It therefore follows that a Preliminary Objection cannot be used to curtail the exercise of such discretion. 3. In light of the above the Court finds that the Preliminary Objection is without merit. **Determination** 1. The Court is not persuaded that the Preliminary Objection dated 16th February, 2026 is merited. The Court makes the following orders: 2. *The Respondent’s Preliminary Objection dated 16th February, 2026 is overruled and it is* ***HEREBY DISMISSED*** *for lack of merit.* 3. *The Applicant is awarded the costs arising out of the Preliminary Objection dated 16th February, 2026.* 4. It is so ordered. **DATED, SIGNED AND DELIVERED AT MILIMANI THIS 23RD DAY OF JULY, 2026** **NJOROGE BENJAMIN K.** **JUDGE** In the presence of: Mr. Cheruiyot for the Applicant. Mr. Burugu for the Respondent. Mr. John Paul - Court Assistant.