Tridev Builders Company Limited v Westmount Investments Limited

2. Fredrick Otieno Outa v Jared Odoyo Okello & 3 others (2017) eKLR 5. The respondent opposed the application through grounds of opposition dated 28th January 2025, replying affidavit sworn by its director, Joseph Marie Ogeto on 28th January 2025 and written submissions dated 31st January 2025. 6. The salient points are that this court is functus officio and has no jurisdiction to entertain an application for review of a ruling emanating from an application made under Section 35 of the Arbitration Act. The Arbitration Act is a complete code that governs and regulates matters of Arbitration as provided in Section 10 of the said Act. The court’s powers under Section 35 of the Arbitration Act in setting aside an award do not include issuing orders to parties on steps undertaken after the setting aside of the award. 7. The respondent faulted the applicant for filing the application twenty two months after the ruling, without explaining the delay. It contended that the application ofiends the principle of finality in litigation. 8. The respondent contended that the claim that the sole reason the court gave for setting aside the award was on the issue of interest is misleading. It also contended that the applicant has not pointed out any error apparent on the ruling that warrants a review, but has instead invited the court to reopen the case afresh. It argued that the application is fatally defective for failure to annexe a formal order of the court. 9. The respondent relied on:1. Anne Mumbi Hinga v Victoria Njoki Gathera [2009] eKLR 2. Nyutu Agrovet Limited v Airtel Networks Limited [2015] eKLR 3. Kamconsult Limited v Telcom Kenya Ltd and Postal Corporation of Kenya, Civil Appeal No. 92 of 2009 4. Odinga v Independent Electoral & Boundaries Commission & 3 others (Petition 5, 4 & 3 of 2013) [2013] KESC 8 (KLR) (Civ) (24 October 2013) (Ruling) 5. Godson Sixty One School Limited v Symbion Kenya Limited (Civil Appeal 158, 159 & 160 of 2020 (Consolidated)) [2023] KECA 900 (KLR) (24 July 2023) (Judgment)S&M Properties v Vinayak Builders Ltd, Misc Application No. 126 of 2018 6. Hosea Nyandika Mosagwe & 2 others v County Government of Nyamira [2022] eKLR 7. Benjoh Amalgamated Limited & another v Kenya Commercial Bank Limited [2014] eKLR 8. Simon Wahome Wachihi v Iriaini Tea Factory & Two Others, Civil Appeal No. 37 of 2015 Analysis and Determination 10. The preliminary point for consideration is whether the court has jurisdiction to grant a review of a ruling made on an application brought under section 35 of the Arbitration Act. 11. Jurisdiction is everything. Without it, a court must down its tools. Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd (Civil Appeal 50 of 1989) [1989] KECA 48 (KLR) (17 November 1989) (Judgment) https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12641/eng@2025-07-24 2

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12. The Supreme Court in Macharia & another v Kenya Commercial Bank Limited & 2 others (Application 2 of 2011) [2012] KESC 8 (KLR) (23 October 2012) (Ruling) stated:“ A Court’s jurisdiction fiows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.” 13. The present application is made substantively under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules. These provisions enable the court to review its own decision and outline the conditions that must be met. 14. The application seeks to review the court’s ruling on an application brought under Section 35 of the Arbitration Act. 15. Section 10 of the Arbitration Act limits the court’s intervention in matters governed by the Act, except as provided. 16. In Anne Mumbi Hinga v Victoria Njoki Gathara [2009] eKLR, the Court of Appeal observed:“ …A careful look at all the provisions cited in the heading in the application and invoked by the appellant in the superior court clearly shows that, all the provisions including the Civil Procedure Act and rules do not apply to arbitral proceedings because Section 10 of the Arbitration Act makes the Arbitration Act a complete code and rule 11 of the Arbitration Rules cannot override Section 10 of the Arbitration Act…” 17. In Godson Sixty One School Limited v Symbion Kenya Limited (Civil Appeal 158, 159 & 160 of 2020 (Consolidated)) [supra], the appellant filed an appeal against a decision by the High Court on an application to review a decision made under section 35 of the Arbitration Act. The Court of Appeal pronounced that:“ …by agreeing to arbitration, parties to a dispute necessarily agree that the provisions of the Act and nothing else will determine the fairness of the hearing. Typically, they agree to waive the right of appeal or review, which in context means that they waive the right to have the merits of their dispute re-litigated or re-considered. By agreeing to arbitration, the parties limit interference by courts to the grounds set out in section 35 of the Act. By necessary implication, they waive the right to rely on any further ground of appeal, review and common law or otherwise. Accordingly, we entirely agree with the learned judge that the appellant improperly invoked the provisions of the Civil Procedure Rules and the Civil Procedure Act by seeking to review the said decision.” 18. Accordingly, I find that the court has no jurisdiction to entertain an application seeking a review a court’s ruling on an application brought under Section 35 of the Arbitration Act. Parties should be guided by the Arbitration Act. I may, nonetheless, state in passing that, parties have the options of appeal-by aggrieved party- subject to the requirements of the law or commence arbitral proceedings in accordance with their agreement. 19. In the upshot, the application dated 11th June 2024 is dismissed. No orders as to costs. DATED, SIGNED AND DELIVERED AT NAIROBI THROUGH TEAMS ONLINE APPLICATION THIS 24TH DAY OF JULY, 2025 ---------------- https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12641/eng@2025-07-24 3

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F. GIKONYO M JUDGE In the presence of: 1. Wanja for Applicant 2. Saka for Respondent 3. CA Kinyua https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12641/eng@2025-07-24 4

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