Fondo & 3 others v Masha (Environment and Land Miscellaneous Application 24 of 2021) [2022] KEELC 2620 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Competence and enforceability of the arbitral award under Section 36 of the Arbitration Act
The award dated 4th December 2020 was competent and enforceable; a certified copy was furnished as required by Section 36(3).
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.
Whether grounds for setting aside the award were proved
No grounds for setting aside were established; the Respondent's allegations of illegality lacked evidentiary support and any setting-aside application was time-barred.
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.
Whether the doctrine of minimum curial intervention applies
The Applicants invoked the doctrine, but the court decided the matter on the enforceability question without expressly adopting or rejecting the doctrine.
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.
Legal principles established
#- 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
#- 1.The arbitral award dated 4th December 2020 is recognized and adopted as a judgment of the court
- 2.Leave granted to the Applicants to enforce the arbitral award as a decree of the court
- 3.Respondent to bear costs of the application
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.