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ELRCPartially AllowedMiscellaneous Application No. E072 of 2025 (consolidated with Misc. Application No. E081 of 2025)· [2025] KEELRC 3031 (KLR)

AMREF International University & another v Mwitari & 2 others (Miscellaneous Application E081 & E072 of 2025 (Consolidated)) [2025] KEELRC 3031 (KLR)

Employment and Labour Relations Court
31 October 2025
ANAGNES KITIKU NZEI
4,133 words in judgment
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The bottom line

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A Kenyan court enforced a Kshs.6.2 million arbitration award, ruling that a missing arbitration seat is a minor technicality, not a fatal flaw.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nairobi (Nzei, J.) determines two consolidated applications arising from an arbitral award dated 18th January, 2025 by Tom Nyagare, MCIArb, in a dispute between Amref International University and its former Senior Lecturer, Dr. James Mwirigi Mwitari, who had been summarily dismissed on 28th July, 2021. The Respondent applied under Section 36(1) of the Arbitration Act for recognition and enforcement of the award (Kshs.6,244,040 plus costs), while the Applicant sought to set the award aside in its entirety under Section 35, arguing inconsistency with the Constitution, the Employment Act, public policy, and arbitrator misconduct, and also filed a preliminary objection contending that the award was fatally defective for failing to state the juridical seat as required by Section 32(4). The Court overruled the preliminary objection, holding that a juridical seat is the legal home of an arbitration, distinct from the hearing venue, and that its omission was a technicality saved by Article 159(2)(d). On setting aside, the Court held that the Applicant bore the burden under Section 35(2)(a) of proving the grounds, including identifying the particular public policy offended; it failed to do so, and its affidavit read like a memorandum of appeal on the merits, which the Court could not entertain. Applying the Christ for all Nations public policy test and the Talewa Road Contractors line of authority on freedom to arbitrate employment disputes, the Court dismissed the setting aside application, recognized and enforced the award, ordered a decree to issue, and directed each party to bear its own costs.

Key legal issues

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01

Whether an award is fatally defective for failure to state the juridical seat under Section 32(4) of the Arbitration Act

Holding

No - the omission is a technicality that does not invalidate the award, especially where parties participated fully and proceedings were conducted in Kenya.

Reasoning

The Court distinguished juridical seat (the legal home of the arbitration whose courts have supervisory jurisdiction) from the physical venue of hearings. Both parties participated without alleging the proceedings were conducted outside Kenya, and the contract stipulated Kenyan law as governing. Article 159(2)(d) required the Court not to unduly dwell on the technicality. The preliminary objection was therefore overruled.

p. 6
02

Whether the award conflicts with the public policy of Kenya and should be set aside

Holding

No - the Applicant failed to identify which public policy the award conflicted with or to prove inconsistency with the Constitution, illegality, immorality, fraud, bias or breach of natural justice.

Reasoning

Public policy is a compendium of segments and the Applicant did not state which segment was offended. The grounds raised (negligence, incompetence, failure to apply the Employment Act, erroneous treatment of the counterclaim) went to the merits of the award, which the Court cannot re-evaluate, as it is not sitting on appeal over the arbitrator. Section 35 confines setting aside to narrow grounds, none of which was established.

p. 8
03

Whether the award should be recognized and enforced under Section 36(1)

Holding

Yes - having dismissed the setting aside application and overruled the preliminary objection, the award was recognized and enforced with a decree to issue.

Reasoning

Section 32A makes an arbitral award final and binding, and Section 10 limits court intervention. With the setting aside application dismissed, there was no remaining obstacle to recognition and enforcement under Section 36(1) as sought by the Respondent in his application dated 11th March, 2025.

p. 9

Legal principles established

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  • Failure by an arbitrator to indicate the juridical seat of the arbitration is a curable technicality that does not invalidate the award.
  • The party seeking to set aside an arbitral award bears the burden of proving the grounds under Section 35(2)(a) of the Arbitration Act, including which public policy of Kenya the award conflicts with.
  • Once parties voluntarily choose arbitration, courts must respect that choice and cannot sit on appeal over an arbitrator's findings; awards can only be set aside within the narrow confines of Section 35.

Court orders

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  1. 1.The Notice of Preliminary Objection dated 3rd April, 2025 is overruled.
  2. 2.The Applicant's application dated 20th March, 2025 seeking to set aside the Final Arbitral Award is dismissed.
  3. 3.The Final Arbitral Award published on 18th January, 2025 and issued by Tom Nyagera, MCIArb is recognized and enforced in accordance with Section 36(1) of the Arbitration Act, 1995.
  4. 4.A decree shall issue accordingly.
  5. 5.Each party shall bear its own costs of these proceedings.
Jurisdiction invoked
Article 162(2)(a) of the Constitution of Kenya 2010; Sections 35 and 36(1) of the Arbitration Act, 1995

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, "AMREF International University & another v Mwitari & 2 others (Miscellaneous Application E081 & E072 of 2025 (Consolidated)) [2025] KEELRC 3031 (KLR)", Case Analysis (2025). Miscellaneous Application No. E072 of 2025 (consolidated with Misc. Application No. E081 of 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3031/eng@2025-10-31

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