https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8603

Swift Builders and Civil Engineering Ltd v African Mission Healthcare (Miscellaneous Application E996 & E1191 of 2025 (Consolidated)) [2026] KEHC 8603 (KLR) (Civ) (18 June 2026) (Ruling) Neutral citation: [2026] KEHC 8603 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Miscellaneous Application E996 & E1191 of 2025 (Consolidated) JN Mulwa, J June 18, 2026 N THE MATTER OF THE ARBITRATION ACT NO. 4 OF 1995 AND IN THE MATTER OF RECOGNITION AND ENFORCEMENT OF AN ARBITRATION AWARD Between Swift Builders and Civil Engineering Limited Applicant and African Mission Healthcare Respondent Ruling 1.There are two Chamber Summons applications for determination before the court.The first application is dated 29/05/2025, brought by African Mission Healthcare Ltd in E 996 of 2025 (hereinafter African Mission). Here, African Mission seeks an order of recognition and enforcement of the Final Arbitral Award made and published on 19/05/2025. 2.The Second Chamber Summons is dated 12/08/2025 brought by Swift Builders and Civil Engineering Limited (hereinafter-Swift Builders). Here, Swift Builders seeks orders to set aside the Final Arbitral Award made and published on 19/05/2025. 3.By consent of the parties, the two applications will be determined together. To avoid confusion and for clarity, the parties hereto shall be referred to as “Swift Builders” and “African Mission” respectively in respect to this ruling. 4.As may be garnered from the parties applications and reliefs sought, it is the court’s considered opinion that the second chamber summons dated 12/08/2025, brought by Swift Builders be determined first, for the reason that should the court find in its favour, and proceeds to set aside the Final Arbitral award published on 19/05/2025, then it would follow that the Chamber Summons application dated 29/05/2025 may become moot, requiring no substantive interrogation and determination. Swift Builders Chamber Summons dated 12/08/2025 5.The summons is predicated upon Provisions of Section 35(2) (iii) and Sections 35 (2) (b) (ii) of the Arbitration Act, 1995, and Rule 7 of the Arbitration Rules 1997 and Article 50 (1) of the 2010 Kenya Constitution. It is supported by grounds found on its face as well as upon the affidavit of Eng. Samuel Sirma Chebii who describes himself as a Director of Swift Builders sworn on 12/08/2025. 6.The gist of the summons as garnered from the affidavit material, is that there are clear and unequivocal admission of errors by the Arbitrator that it is in excess of the Arbitrators mandate and Jurisdiction, it is against public policy of Kenya, self-contradictory, Arbitrator misconducted himself by making unwarranted attacks and find is as against itself, and was biased against its witnesses among other grounds as alleged. 7.Additionally, it is alleged that the Arbitrator purported to re-write the parties contract by revision and reviewing the contract rates in the final award that was unlawful, was without legal basis both in law and fact, that the award of Kshs. 10,500,000/=in general damages for breach of contract cannot sustain as it was against public policy for lack of certainty in application of the law, that the Arbitrator failed to lay basis for awarding 70% of the costs against Swift Builders under the final award to African Mission was arbitrary and should be set aside. 8.In opposing the summons, African Mission Healthcare Ltd filed a replying affidavit (filed in E996/2025) sworn by Jon Fielder, the Chief Executive of African Mission on 15/09/2025. 9.The gist of the averments as seen in his affidavit is that the award is based on matters of fact, specific findings based on evidence presented to the Arbitrator and one abstracts from the pleadings exchanged by both parties, upon which the final award is grounded. 10.It is further denied that the Arbitrator admitted any errors in the final accounts as alleged by swift builders.,It is further the case for African Mission that by the summons before court, it seeks an attempt to appeal against the award yet both parties agreed on the issue of subcontractors that the subcontractors were engaged as domestic and not nominated as alleged by Swift Builders.Africa. 11.Additionally,r review, it is averred that the Arbitrator was justified in awarding the impugned damages that as it claimed recurrent office overheads and quantities that formed part of the JBC which was the contractual document between the partieshe parties; hence both parties being bound by their pleadings, they cannot depart therefrom and therefore the award was justified and ought not be set aside. Submissions by Swift Builders in support for setting aside the Arbitral Award 12.In support of setting aside the Final Award, Mr. Oloo Advocate instructed by its Advocates Mr. Otieno Aluoka & co. Advocates filed the submissions dated 24/10/2025 in support of its chamber summons application dated 12/08/2025. Counsel began by submitting that the two parties entered into a construction agreement dated 9/09/2020 (the agreement). That by the agreement terms dated there were a should a dispute arisearose, it would be subjected to prompted invocation of clause 45 thereof any dispute was to be referred to arbitration; therefrom a and sore Arbitrator was duly appointed by the president of the Architectural Association of Kenya. 13.It submitted that Swift Builders upon the publication of the final award on 19/05/2025, it challenges part of the final award upon grounds stated that Arbitrator was biased against Swift Builders witness’s clear and equivocal admission that there were errors in the final account, upon which the Arbitrator on the issue border on professional misconduct, amounts to rewriting the contract and is a gross violation of the Applicants rights. 14.That the Arbitrator even did not issue any directions on the corrections of such errors and dismissed the claim to serious detriment of the Applicants constitutionally protected right to property. To property, further objecting to the award 15.Further, Swift Builders objected to the award by submitting that the arbitrator fell in grave error in finding that the subcontractors were domestic subcontractors as opposed to nominated subcontractors, yet were paid directly by African Mission; that as such, the contractor was not justified for additional costs regarding the subcontractors in form of profit and attendance for the work (par 14, 10, page 14 of the award) 16.It is a submission that the Arbitrator made contradictory findings, extended the contract by six months (par. 14.17 at pg. 16 of the Award); that the Respondents (African Mission) that the project's practical completion date of the project was 17/07/2021 (par. 14.23, Pg. 18) then inexplicably makes a finding that it is Swift Builders who was in breach of the completion date, (par. 14.10, 17) 17.It is submitted that another error by the Arbitrator was in respect of payment for use of its equipment for the whole period whereas it was so admitted (par. 14.31, pg20, there being a basis for denial for payment. Further that he erred by denying swift builders recurrent office overheads by finding that it was in breach by Hudson’s formula on basis that neither the contract of the Bill of Quantities mentioned the Hudson’s formula, thus dismissed the Applicants claims for overhead costs contrary to established law. 18.Additionally the Arbitrator is faulted for revision and review of the contract rates in the Final Account which was unlawful to Swift Builders detriment without any basis, hence a breach of the contract, and acting ultra vires and outside his mandate and referral terms of the dispute (par. 1452 and 14.53, pg. 25) 19.It is submitted that the arbitrator was biased against the Applicant Swift Builders by making unwarranted attacks and findings of impecunity and basing the entire Award on the alleged impecurity despite the evidence on record demonstrated the Respondent’s (African Mission) breach. 20.That the Arbitrator offered no basis for assessment of the award in damages in Kshs. 10,500,000/- yet it is settled in law that only liquidated and ascertainable damages are awardable for breach of contract that rendered the award to be against public policy, that he provided no basis for awarding 70% of the costs under final award to the Respondent. 21.For the above submissions and grounds, Swift Builders urges the court to set aside the final arbitral award, having been received by both parties on 19/05/2025, and therefore filed within the timelines prescribed under the law. 22.The Applicant Swift Builders flagged one issue it deems necessary for court’s consideration thus:- Whether where the impugned awards in the Final Award should be set aside. 23.Citing decisions in support are:- Christ for All Nations v. Apollo Insurance Col Ltd [2002] 2EA 336, Kenya Shell Limited V. KOG/Petroleum Limited [2006] eKLR Glencore Grain Ltd v. TSS Grain Millers Ltd [2002] I KLR Perans East Africa Ltd v. Kenya Rugby Union & Another [2021] eKLR; all in support of the ground that there exists numerous errors in the Final Award; urging the court to find as such, and proceed to set it aside. African Missions submissions in opposition to setting aside the Final Arbitral Award. 24.The submissions are dated 18/11/2025 filed by its Advocate Mr. Mbugua instructed by the firm of Namachanja and Mbugua Advocates.He began by stating that the underpinning legal statute applicable is Section 35 of the Arbitration Act, 1995; that both parties had framed their respective issues for determination before the Arbitrator which were admitted as follows:-a.Was there breach of contract and if so by whom and with what consequences.b.Are the parties entitled to the reliefs sought and if sofi so, at what interest should the same be awarded?c.Who bears the costs of the application? 25.Counsel submitted that the Applicant Swift Builders does not meet the threshold set out at Section 35(2) for setting an Arbitral award aside upon grounds that:a.The final award was not in excess of the Arbitrator’s jurisdiction.b.That the Arbitrator did issue directions on correction of alleged errors and rendered that there were no unequivocal admissions of errors nor was the effect on the overall budget of the works on the alleged mistakes. 26.The Respondent here submits that just because the Arbitrator disagreed with the Applicants, that cannot amount to a breach of his duty as umpire as it has no legal support at all (par. 14.76 of the award) 27.It is further submitted that the Arbitrator did not purport to rewrite the parties contract as alleged just because he did not agree with the subcontractors, that the issue whether the sub-contractors were domesticated or nominated as stated was one of the issues before the Arbitrators for determination (par. 14.7 of the Award). 28.It was submitted that the Bills of Quantities (BQs) forming part of the contract documents are binding, that both parties did not have any Prime Cost (PC) sums in it as the PC were included in the BQ’s to cater for the cost of works to be executed by Nominee sub-contractors adding that it was agreed that the sub-contractors were to be engaged as Domestic and not Nominated. 29.On the issue of extension of time for completion of the contract, it is submitted that Arbitrator determined that African Mission breached the contract terms by interpreting of the project’s completion date, stated to be 17/07/2017 30.That the completion date was initially 10/03/2021, was amended by a letter dated 16/03/2021 by Swift Builders (Applicant) to the Respondent (African mission), requesting for additional time clearly demonstrating that Swift Builders was in breach of the completion date. 31.As to Swift Builders allegations on its tools and equipment, it is submitted that the Arbitrator noted that a list and pictures of Swift Builders tools were taken but the same were not authenticated by any of the parties, hence showing evidential inadequacy by Swift Builders, of allegations labeled against the African Mission, and urging therefore that the Arbitrator was correct in his findings in the Final Award. 32.African Mission further submits further that Swift Builders wants the Arbitrator to rewrite the contract by agreeing to a Hudson’s formula, whereas he held that neither the JBC nor the BQ mentioned the Hudson’s formula, adding that the Arbitrator was correct when he failed to adopt the said formula as it did not form the contractual documents between the parties as to do so was to act beyond his jurisdiction – (Par. 14.19 & 30 of the award). 33.It is submitted further that the award of Kshs. 10,500,000/= for general damages had basis which the Arbitrator used to arrive at the said sum, at par. 14.106 of the award being broken up as Kshs. 700,000/= for delay in completion of the project per week or party thereof, as 15X700,000 = 10,500,000 and therefore the Applicants are misleading the court as at par. 14-108 of the award it is stated that the successful counter-claim of the Respondents shall accrue simple interest at a rate of 8.5% per annum starting from 21 days after the date of the award to date of payment. 34.As to 70% costs awarded against Swift Builders in favour of African Mission, it is submitted that at par 15-109 of the award, the Arbitrator cited power to award costs as vested in Section 32B of the Arbitration Act, stating that the normal rule being that costs follow the event, that he found no reason to deviate from the rule as the Swift Builders sustained part of its claim as well as the African Mission sustaining part of its counterclaim. 35.On the matter of issues and fact, African Mission submitted that this court cannot interfere with either nor analyze the material thereto, to fault the Arbitrators findings as to do so would amount to usurping the Arbitrator’s authority donated to him by the parties, urging the court not to set aside the award due to a mistake of fact or law, that the court ought not sit on appeal against the award, that it must resist temptation to negate the legal merits of the award. 36.Award contrary to public policy? African Mission submits that Swift Builders has totally failed to satisfy the threshold set out in case law it cited, as at every stage the Arbitrator explained his reasoning, taking aid from the citation it cited particularly Christ for All Nations v. Apollo Insurance Co. Ltd and Kenya Shell Limited v. Kobil Petroleum Limited to show that the award:a.Was not inconsistent with the constitution or other laws of Kenya;b.Was not inimical to the Public interest of Kenya,c.Did not go contrary to justice and morality;d.That the award was not immoral of illegal, did not violate the basic legal and/or moral principles or values in the Kenyan Society;e.That the Award was not on the face of the record devoid of justice; 37.That African Mission in regard thereof submitted that the Arbitrator complied fully with Clause 19(1) and (2) of the Chartered Institute of Arbitrators Rules which applying the law involving contracts and decided in accordance with the terms of the contract as well as taking into account usages or the trade applicable to the contract and therefore having complied with the Rules, the court ought not interfere with the final award as contemplated at Section 35 (2) of the Act. 38.In conclusion, it is African Mission’s submissions that the Swift Builders has failed to satisfy requirements for setting aside the final arbitral award. The court is urged to dismiss the said chamber summons, and allow the summons dated 29/05/2025 for recognition and enforcement of the final award. Rendition of Issues for Determination 39.The court has carefully considered the parties pleadings, affidavit material and rival submissions and postulates for determination the following issues:- 1.Whether Swift Builders has met the threshold for setting aside the Final Arbitral Award made and published on 19/05/2025. 2.If the answer is in the affirmative, whether the summons dated 29/05/2025 should be allowed. 3.Who bears costs of the respective summons? 40.Section 35 of the Arbitration Act, 1995 underpins the grounds for setting aside arbitral awards.Section 35 (2) provides-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 to, failing any indication of that law, the laws of Kenya, Arbitration CAP 49.iii.The party making application was not given proper notice of Application for setting aside the arbitral award.iv.The making of the award was induced or affected by fraud, bribery, undue influence or corruption.b.The High Court finds thati.The subject matter of the dispute is not capable of settlement by arbitration under the law of Kenya.ii.The award is in conflict with the public policy of Kenya (emphasis mine) 41.Here, Swift Builders seeks to set aside the arbitral award on account of-a.errors unequivocally admitted by the Arbitrator.b.Excess of the arbitrators mandate and jurisdictionc.Award against public policyd.Bias by the arbitrator against its witnesses by unwarranted attacks against its witnesses.e.Misconduct of the arbitrator by rewriting the contract between the parties by revision of the contract rates in the final award.f.Award in general damages was in breach of the contract, and it is against public policy. 42.I have considered the rebuttal by the African Mission on the above salient grounds flagged by Swift Builders and the issues for determination set out by each party. Whether Swift Builders meets the threshold for setting aside the final award? 43.Having stated the salient grounds raised by Swift Builders in the final award, it is evident that the dissatisfaction is not anchored on Section 35 (2) as cited. 44.Swift Builders faults the Arbitrator for what it deems as misconduct of the Arbitrator whereof he has been accused of being biased by attacks against its witnesses and misconduct exhibited in alleged rewriting of the contract between the parties, revision of interest rates in the final award, and generally excessive award on general damages, as being against public policy. 45.To start with, the Arbitrator’s mandate is stated at page 5 par 7.2 being the terms of engagement found at the Final Award thus–7.2:At the meeting, the parties agreed to my terms of engagement, which ran from 7.2 to 7.11, that include the methodology adopted by the parties for hearing of the Arbitration proceedings. 46.Issues in the dispute were also stated at page 11, par. 13 thus;a.Was there breach of contract and if so by whom and with what consequence?b.Are the parties entitled to reliefs and if so at what interest should the same be awarded?c.Who bears the cost of this Arbitration? 47.It is to be noted that it is not for the court to re-evaluate the evidence adduced before the Arbitrator, as to do would translate it as an appeal. The court’s role at this stage is to ascertain if the Applicant has made out a case to warrant setting aside of the arbitral award as held in APA Insurance Company Limited v. Barnabas Okemo [2005] eKLR. 48.Under Section 35(2) (iv) of the Act the party making the application must furnish proof, and bears the burden of satisfying the court that the Arbitral Tribunal determined the dispute not contemplated or not falling within the terms of reference, or within its jurisdiction. 49.Further, it is the applicant-Swift Builders to satisfy the court that the award contains decisions on matters outside the scope of reference of the Arbitrator by stating the specific items in the agreement or contract. Here, I have carefully read the voluminous agreement and condition of contract for Building Works executed by the parties, dated 20/9/2020, its terms of agreement, and in this case, the Arbitrator’s summary of the contract, origin of the dispute as found at pages 2 – 4. 50.It is noted that the parties by agreement entered into a new arrangement between themselves as to accommodate Swift Builders, which fell into financial difficulties, and altered the original contract, to assist it. 51.By the stated new arrangement, the parties agreed to change the contract into a labour–only contract whereof, African Mission would pay for the materials at the suppliers and Swift Builders would then provide the labour required to collect the materials them from the suppliers and fix them on site; as well as directly pay Swift Builders labourers at the site- page 3. 52.It appears to me that the new arrangement did not work well with Swift Builders, who claimed upon the agreed terms that the Final Accounts were not calculated well, hence raising the issues under consideration to wit, the Arbitrator considered upon hearing both parties their counsel interventions – page 4 -11 of the Final Award. 53.Whereas Swift Builders puts forth reasons for setting aside the Final Award as clear and unequivocal admissions of errors that are evident in the Final Award. This in my view is an invitation to the court to go back to the evidence adduced before the Arbitrator, interrogate the same and re-evaluate it. It is trite law that it is not the court’s role to re-evaluate the evidence as to do so would be sitting on appeal on the Final Award, which is not permitted – see the APA Insurance Company (supra); and Synergy Industrial Credit Limited Cape Holdings Limited [2020] KECA 208 (KLR). Evaluation and admissibility of evidence is a role of the Arbitrator as empowered at Section 20 (30) of the Arbitration Act to Arbitrator/Tribunal, to determine the admissibility of relevant materiality and weight of the evidence. 54.On the impugned faults raised by the Applicant, notably Final Account errors, re-writing the contract, payment in regard to subcontractors as domesticated and or nominated subcontractors, having read through the entire Final Award, I cannot find sufficient fault to warrant setting aside of the Final Award in regard thereto. Perusal of the proceedings before the Arbitrator, show that the issues at fore were well analyzed and determined by the Arbitrator – see par. 12.1; 14’4, 13.14 at pages 12-14 of the ward. 55.As to alleged misconduct by the Arbitrator, I repeat here that this court is not empowered to sit on appeal on the Final Award. There is no evidence tendered that the Arbitrator breached principles enunciated by dint of Section 35(2) (iv) of the Act. Swift Builders had the burden of proof to show how the Arbitrator misconducted himself, determined a dispute that was not contemplated or not falling within the terms of reference stated earlier – see APA decision (supra). 56.It is trite in Arbitration disputes that mere errors in fact or law do not suffice to set aside an award as held by the Court of Appeal in Synergy Industrial credit Limited case (supra) 57.Coming to the issue of whether the final Award is contrary to Public Policy–Swift Builders called to aid the decision in Christ for all nation v Apollo Insurance Co. Ltd [2002] 2EA 336, for the holding that public policy includes fairness, adherence to legal principles and justice to all parties. 58.In Kenya Shell Limited V. Kobil Petroleum Limited [2006] eKLR, the court held that an award ought to be set aside if it is inconsistent with the constitution or to the laws of Kenya, or inimical to the national interest of Kenya and contrary to justice or morality.That stated, Swift Builders has not tendered proof of the said allegation, by which section 35(2) (b) (ii) of the Act speaks to. Gladly counsel provided numerous decisions on the subject, for which I am grateful.But in my considered estimation Swift Builders has failed to prove how the award is against the principles in regard to public policy that the Arbitrator is alleged to have violated. 59.Swift Builders has failed to show, for instance, how the award is devoid of Justice or not explained in a rational manner, how it is immoral or against values in Kenyan Society as expressed in Glencore Grain Ltd v. TSS Grain Millers Ltd [2002] IKLR 606 Perans East Africa Limited v. Kenya Rugby Union & Another [2021] eKLR among other decisions. 60.On the matter of Final Account, while it is urged by the Swift Builders that there were errors, and that the Arbitrator failed to issue directions on such errors, thus breached his duty as the umpire, the Arbitration proceedings at pages 12, 13, 14 paragraphs 14.7, 14.9, 14.12 evinces the Arbitrator’s directions on the perceived errors, and reasons for the same, citing the new agreement between the parties and the breaches of the contract by both parties – par. 14.26, p[age 18, 20. He citing breaches as in respect of office overheads, calculation of the said costs using Hudson’s Formula, on plant, tools and equipment belonging to Swift Builders, and breaches by African Mission in withholding and or retention of dues from delayed completion of the contract – pages 21 -23. 61.Further, it is evident that the Arbitrator justified alteration of the Bill of Quantities (BQs) rates in the Final Award with the rationale stated at page 24 par 14.46, 14.47. 14.48. Thereby admonishing the Swift Builders for its failure to sign the reasonable final accounts as agreed by the parties. 62.In this regard, it is on record at page 26 of the Final Award that the Arbitrator stated thus, in labour–contracts only it is the industry practice for contractors to not price for profit and overheads separately but to include these in their labour rates for the individual items they priced for in the BQ –page 26-28 par. 14.57-14.58. 63.The above in my considered view removes any blame or fault from the Arbitrator as he reasonably rationalized the mode of calculations that lead to the Final Figures; that the Swift Builders says are against public policy, with no elaboration. 64.On the ground that the Arbitrator did not give any basis for awarding 70% of the costs under the Final Award to African Mission, the Arbitrator found and made a finding that African Mission Counter claim failed, and the Swift Builders claim partly succeeded – par. 5.29, page 15. 65.I note that the Arbitrator at par. 5.30 gave the rationale for the above apportionment of costs, citing Section 27 of the Civil Procedure Act and I add correctly as he had found that both parties were in breach of the contract at the ratio of 70% against Swift Builders and 30% in respect to African Mission respectfully. At par 14.10 -108, basis for the ratio on costs and basis of the final award is provided, contrary to the Sift Builders suggestion that there was no basis of the awards provided by the Arbitrator. 66.Finally, I am minded that my role does not involve re-assessment of the awards made by the Arbitrator as is not permissible by dint of Section 35 of the Arbitration Act. Final Disposition 67.With the above in reserve, I find and hold that the Applicant (Swift Builders and Civil Engineering Limited) has fallen short of providing proof, as demanded at Section 35 (2) of the Act, for setting aside the Final Award published on 19/05/2025. 68.The Chamber Summons application dated 12/08/2025 is dismissed with costs to the Respondent, African Mission Healthcare Limited with costs to the Respondent, African Mission Healthcare Limited.Orders accordingly. DELIVERED DATED AND SIGNED AT NAIROBI THIS 18TH DAY OF JUNE 2026JANET MULWA.JUDGE