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ELCAllowedNot stated in judgment· [2022] KEELC 2620 (KLR)

Fondo & 3 others v Masha (Environment and Land Miscellaneous Application 24 of 2021) [2022] KEELC 2620 (KLR)

High Court of Kenya
5 July 2022
1,862 words in judgment
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The bottom line

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Kenya's High Court confirmed that an arbitral award becomes a court judgment once certified and unchallenged within three months, regardless of the losing party's objections.

What this practically means

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Executive summary

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This ruling of the High Court at Malindi (M.A. Odeny, J) determined a Notice of Motion dated 28th May 2021 seeking recognition and enforcement, under Section 36 of the Arbitration Act, of an arbitral award issued by a tribunal constituted under the Land Adjudication Act and published on 4th December 2020. The dispute concerned land parcel Mwanda/Mbalamweni/985, measuring approximately 407 acres, over which an earlier adjudication board had awarded 367 acres to the Applicants and 40 acres to the Respondent on 22nd September 2017. After new numbers were allegedly issued illegally within the parcel, a fresh adjudication board made a similar award on 4th December 2020, directing that all new subdivisions be vacated and the parcel divided into only two portions. The Applicants obtained consent under Section 30(1) of the Land Adjudication Act and applied to enforce the award, arguing it had neither been appealed nor set aside within the three-month window in Section 35(3) of the Arbitration Act. The Respondent contended the award was irregularly and illegally obtained without its knowledge, that the proper challenge procedure under Section 21 of the Land Adjudication Act was not followed, and that a copy of the award had not been produced as required. The court found that a certified copy of the award had been annexed to the supporting affidavit, satisfying Section 36(3), and that the Respondent's allegations of illegality were unsubstantiated and of no probative value under Section 109 of the Evidence Act. The court recognized and adopted the award of 4th December 2020 as a judgment of the court, granted leave to enforce it as a decree, and ordered the Respondent to bear the costs of the application.

Key legal issues

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01

Competence and enforceability of the arbitral award under Section 36 of the Arbitration Act

Holding

The award dated 4th December 2020 was competent and enforceable; a certified copy was furnished as required by Section 36(3).

Reasoning

The court noted that the 1st Applicant annexed a certified copy of the arbitral award to the supporting affidavit, satisfying Section 36(3). Section 36(1) renders a domestic award binding and enforceable upon written application to the High Court, subject to Section 37 grounds for refusal, none of which were established.

p. 5
02

Whether grounds for setting aside the award were proved

Holding

No grounds for setting aside were established; the Respondent's allegations of illegality lacked evidentiary support and any setting-aside application was time-barred.

Reasoning

Under Section 35(3) of the Arbitration Act, recourse to set aside an award must be sought within three months. The Respondent neither appealed nor applied to set aside the award within the statutory period. Allegations that the award was illegally obtained were unsubstantiated under Section 109 of the Evidence Act and therefore had no probative value.

p. 5
03

Whether the doctrine of minimum curial intervention applies

Holding

The Applicants invoked the doctrine, but the court decided the matter on the enforceability question without expressly adopting or rejecting the doctrine.

Reasoning

Counsel for the Applicants submitted, relying on Nyutu Agrovet, that the court should not re-analyse the arbitral award and should not consider arguments never raised before the arbitrator. The court's analysis concentrated on Sections 36 and 37 of the Arbitration Act and the evidentiary burden; it did not expressly pronounce on the doctrine in its determination.

p. 3

Legal principles established

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  • A domestic arbitral award shall be recognized as binding and, upon application in writing to the High Court, enforced, subject to sections 36 and 37 of the Arbitration Act.
  • The burden of proving a particular fact lies on the person who wishes the court to believe in its existence.

Court orders

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  1. 1.The arbitral award dated 4th December 2020 is recognized and adopted as a judgment of the court
  2. 2.Leave granted to the Applicants to enforce the arbitral award as a decree of the court
  3. 3.Respondent to bear costs of the application

Authorities

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Legislation

  • Arbitration ActSections 2, 35(3), 36, 37
  • Land Adjudication ActSections 7, 21, 30(1)
  • Land Consolidation ActSection 10
  • Civil Procedure Act, 2010Sections 1A, 1B, 3B
  • Evidence Act CAP 80Section 109
  • Civil Procedure RulesOrder 21 [1]

Cases cited (6)

  • Summit Cove Lines Co Ltd v UAP Insurance Co Ltd
    [2020] eKLR
  • Nairobi Golf Hotels Ltd v Linotic Floor Company Ltd
    [2015] eKLR
  • Mahican Investments Limited & 3 others v Giovanni Gaida & Others
    NRB HC Misc. Civil App No. 792 of 2004 [2005] eKLR
  • Castle Investments Company Ltd v Board of Governors – Our Lady of Mercy Girls Secondary School
    Misc. App 780 of 2017 [2019] eKLR
  • Nyutu Agrovet Limited v Airtel Networks Kenya Limited; Chartered Institute of Arbitrators –Kenya Branch (interested party)
    [2019] eKLR
  • Tanzania National Roads Agency v Kudan Singh Construction Limited
    Misc Civil App No. 17 of 2012
Jurisdiction invoked
Sections 2 and 36 of the Arbitration Act, 1995; Sections 7 and 30(1) of the Land Adjudication Act; Section 10 of the Land Consolidation Act; Sections 1A, 1B and 3B of the Civil Procedure Act, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Fondo & 3 others v Masha (Environment and Land Miscellaneous Application 24 of 2021) [2022] KEELC 2620 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2620/eng@2022-07-05

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.