Exquisite Services Limited v Mwakuzimu & 4 others (Environment and Land Case 104 of 2021) [2025] KEELC 5818 (KLR)
The bottom line
#A Kwale court refused to overturn an arbitration award refunding Kshs 8 million, ruling that consent orders bind parties and fraud claims must be proven, not just alleged.
What this practically means
#Executive summary
#Key legal issues
#Whether the arbitral award should be set aside under Section 35 of the Arbitration Act for fraud, bias or misrepresentation
The application failed; the award was in the Applicant's favour, the consent was voluntarily recorded with the co-director's participation and knowledge, no bias or fraud was proved, and the court cannot re-evaluate arbitral evidence
The court confined itself to the Section 35 threshold, guided by Geo Chem Middle East v Kenya Bureau of Standards. The arbitrator gave all parties an opportunity to be heard; directors were aware of proceedings via email correspondence. The 1st and 2nd Defendants' resiling from the consent they earlier admitted in their defence amounted to abuse of process. Fraud allegations, being unproved, could not justify setting aside. The advocates' conduct fell to the Disciplinary Tribunal.
Whether the proposed 5th Defendant should be re-joined under Order 1 Rule 10(2)
Refused as an exercise in futility once the setting-aside application failed
Although the court recited the joinder principles from Nambuye J in Kingori v Chege and Departed Asians Property Custodian Board v Jafier Brothers, and initially found 'great merit' in joinder, it ultimately held joinder would serve no purpose because the substantive application to set aside the award failed. The party's conduct was also a professional-misconduct matter pending before the Advocates Disciplinary Tribunal.
Whether allegations of professional misconduct against the former advocate and co-director can be determined by the court
No; such complaints belong to the Advocates Disciplinary Tribunal under the Advocates Act, where complaints are already lodged
Citing Republic v Advocates Disciplinary Committee ex-parte Danstan Omari Mogaka, the court held that determining professional misconduct is the Tribunal's mandate under Sections 55-80 of the Advocates Act, and the court would not usurp it.
Legal principles established
#- The High Court on a Section 35 application may not re-evaluate arbitral evidence; that would be sitting on appeal against the award
- A consent order or judgment has contractual effect and can only be set aside on grounds justifying setting aside a contract, such as fraud, collusion or misapprehension
- The burden of proving fraud lies on the party alleging it, and fraud cannot simply be inferred from the facts
- The onus of determining professional misconduct belongs to the Advocates Disciplinary Tribunal, not the court
- Courts have inherent jurisdiction to prevent abuse of their process, including where parties resile from consents they voluntarily recorded
Court orders
#- 1.The Notice of Motion applications dated 6th September 2024 and 27th March 2025 be and are hereby found to lack merit and are dismissed accordingly
- 2.Each party to bear its own costs
- Jurisdiction invoked
- Section 35 of the Arbitration Act; Sections 1A, 1B, 3A and 3B of the Civil Procedure Act, Cap 21; Order 51 of the Civil Procedure Rules 2010; Order 1 Rule 10(2) of the Civil Procedure Rules 2010; Article 159 of the Constitution of Kenya 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Exquisite Services Limited v Mwakuzimu & 4 others (Environment and Land Case 104 of 2021) [2025] KEELC 5818 (KLR)", Case Analysis (2025). Mombasa HCCC No 106 of 2013 (referred matters: twin Notices of Motion dated 6th September 2024 and 27th March 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5818/eng@2025-05-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.