Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedMiscellaneous application dated 26.6.2024 (to be placed in file L Misc E115 of 2024)· [2024] KEELC 7317 (KLR)

Elite Westlands Limited & another v Kiama (Environment and Land Miscellaneous Application E003 of 2024) [2024] KEELC 7317 (KLR)

High Court of Kenya
30 October 2024
LMLucy N. Mbugua
1,591 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
The applicants moved the court by Notice of Motion dated 26.6.2024 seeking to set aside an arbitral award published on 19.6.2024 by the sole arbitrator, William Edward Kosar, MCIArb. The underlying dispute arose from a sale agreement dated 27.8.2021 for a 1-bedroom apartment on LR No 209/2144/1 for Ksh 12 million. After the respondent/purchaser defaulted (having paid Ksh 6,500,000), the 1st Applicant issued a completion notice dated 21.6.2022, rescinded the contract and resold the property. The purchaser referred the dispute to arbitration seeking breach-of-contract findings, damages, a refund, interest and costs. The applicants sought setting aside under section 35 of the Arbitration Act on four grounds: improper notice of the arbitrator's appointment; conflict with public policy (reliance on an unproven county letter, an unpleaded Ksh 2 million compensatory damages award, and a finding of waiver of the right to rescind); inability to present their case due to a withheld occupation-certificate letter; and decisions on matters beyond the reference (forgery allegations). The respondent countered that the application was an appeal on the merits and that the applicants had participated fully without raising jurisdictional objections. The court, applying section 35 and the Supreme Court's guidance in Synergy Industrial Credit v Cape Holdings, held that the notice objections were factual matters that should have been raised in limine and that the applicants had wholly submitted to the tribunal's jurisdiction. The applicants participated fully, the award was confined to the issues framed, and the remaining complaints lay in the realm of an appeal. The application was dismissed with costs to the respondent on 30 October 2024.

Key legal issues

#
01

Whether the applicants were given proper notice of the arbitrator's appointment and whether the award should be set aside on that ground

Holding

Ground rejected - the applicants never questioned the arbitrator's validity before the tribunal and wholly submitted to its jurisdiction; the objection is belated

Reasoning

The applicants filed a statement of defence on 26.6.2023 and nowhere questioned the validity of the arbitrator or the proceedings. Complaints about notice of appointment are factual issues that must be raised in limine before the arbitration body. Having wholly submitted to the jurisdiction and participated without contesting validity, they cannot cry foul only after an unfavourable decision.

p. 4
02

Whether the award conflicts with public policy, whether the applicants were unable to present their case, and whether the arbitrator exceeded the scope of the reference

Holding

Grounds rejected - the applicants fully participated, the award was confined to the issues framed (breach of contract and damages), and the complaints amount to an appeal on the merits

Reasoning

The applicants participated fully, called witnesses and filed submissions. The issues they framed before the arbitrator related to breach of contract and damages, and the award was confined to those issues. Complaints of inability to present their case, public policy conflict and excess of scope are matters in the realm of an appeal, not setting aside under section 35.

p. 4

Legal principles established

#
  • Once parties agree to settle disputes through arbitration, an aggrieved party may only approach the High Court to set aside the award on the specified grounds under section 35 of the Arbitration Act
  • Grounds such as improper notice of the arbitrator's appointment are factual matters that must be raised before the arbitral body; a party who submits to jurisdiction cannot later challenge the award on those grounds
  • Substantial justice does not permit a party to invoke provisions of the law unduly and belatedly to take advantage of an opponent
  • Court intervention in arbitral awards must be provided for in legislation, consistent with section 10 of the Arbitration Act and party autonomy

Court orders

#
  1. 1.The application dated 26.6.2024 is dismissed
  2. 2.Costs to the respondent
  3. 3.A copy of the ruling to be placed in the file L Misc E115 of 2024
Jurisdiction invoked
Section 35 of the Arbitration Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Elite Westlands Limited & another v Kiama (Environment and Land Miscellaneous Application E003 of 2024) [2024] KEELC 7317 (KLR)", Case Analysis (2024). Miscellaneous application dated 26.6.2024 (to be placed in file L Misc E115 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7317/eng@2024-10-30

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