[2024] KEHC 14054 (KLR)

[2024] KEHC 14054 (KLR)

The court held that the applicant's grounds for challenging the arbitral award, except for the allegation of conflict with public policy, amounted to an impermissible invitation to sit on appeal over the arbitrator's factual and legal findings, contrary to Section 32A of the Arbitration Act. The only ground open for consideration was whether the award was contrary to public policy. The applicant failed to specify or prove which works were incomplete, did not provide evidence of additional expenses or independent reports, and did not refer any dispute to arbitration or terminate the contract for breach. The court found that the project site had been handed over, the final accounts and...

Citation
[2024] KEHC 14054 (KLR)
Parties
Applicant: Hon Eng Bahati Musira Semo; Respondent: Ricosam Engineering Limited
Court
High Court
Court Station
High Court at Nairobi (Milimani Commercial Courts)
Jurisdiction
Kenya
Judgment Date
8 November 2024
Case Number
Commercial Miscellaneous Application 006 of 2023
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Arbitral Award
Outcome
application dismissed with costs to the respondent
Judges
MN Mwangi
Legal Topics
Arbitral Award Challenge, Public Policy Exception, Finality of Arbitral Awards, Construction Contracts, Evidence in Arbitration
Source Language
English
Commercial and Corporate Alternative Dispute Resolution Arbitral Award Challenge Public Policy Exception Finality of Arbitral Awards Construction Contracts Evidence in Arbitration

Case Brief

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Parties

Hon Eng Bahati Musira Semo

Applicant

Ricosam Engineering Limited

Respondent

Procedural Posture

Miscellaneous Application / Ruling on Application to Set Aside Arbitral Award

Legal Issues

  1. 1 Whether the arbitral award delivered on 30th August 2022 should be set aside under Section 35 of the Arbitration Act.
  2. 2 Whether the award is contrary to public policy of Kenya.
  3. 3 Whether the arbitrator's refusal to visit the site or consider certain evidence amounted to bias or procedural unfairness.

Ratio Decidendi

The court held that the applicant's grounds for challenging the arbitral award, except for the allegation of conflict with public policy, amounted to an impermissible invitation to sit on appeal over the arbitrator's factual and legal findings, contrary to Section 32A of the Arbitration Act. The only ground open for consideration was whether the award was contrary to public policy. The applicant failed to specify or prove which works were incomplete, did not provide evidence of additional expenses or independent reports, and did not refer any dispute to arbitration or terminate the contract for breach. The court found that the project site had been handed over, the final accounts and...

Court Disposition

application dismissed with costs to the respondent

Orders

  • The application dated 26th September 2022 is dismissed.
  • Costs awarded to the respondent.