Lucy Nyaguthii Njaimwe v Cytonn Investments Management Plc

Issues for Determination: 4. Three issues arise for determination: i. Whether the Preliminary Objection raised by LNN is merited. ii. Whether CIM’s application to set aside the arbitral awards is properly before Court. iii. Depending on the above, whether LNN’s application for recognition and enforcement of the awards ought to be allowed. Analysis and Determination The Preliminary Objection: 5. It is trite that a preliminary objection, if successful, has the capacity to dispose of a matter without the necessity of going into its merits. In this instance, the objection is anchored on Section 35(3) of the Arbitration Act, which provides as follows: “ An application for setting aside the arbitral award may not be made after 3 months have elapsed from the date on which the party making that application had received the arbitral award, or if a request had been made under section 34 from the date on which that request had been disposed of by the arbitral award.” 6. The evidence on record is uncontested. The main award was published on 3rd May 2024, and the additional award on 3rd July 2024. The application to set aside the awards was filed on or about 11th November 2024, well beyond the three-month statutory limit provided under the Act. 7. Section 10 of the Arbitration Act expressly limits the extent of Court intervention in arbitral proceedings. It follows that once the statutory time for challenging an award has lapsed, the Court is divested of jurisdiction to reopen the award. The Act does not grant discretion to enlarge time under Section 35. The Supreme Court in Nyutu Agrovet Ltd v Airtel Networks Ltd & Another, [2019] eKLR underscored the fact that arbitration is intended to provide finality, and that Courts should be slow to interfere save as expressly provided by statute. 8. In any case, CIM has neither sought nor demonstrated any justifiable basis for enlargement of time. Even assuming such discretion were available under the Arbitration Act, the explanation advanced, that the awards were allegedly released only to LNN, cannot withstand scrutiny. The documentary evidence placed before this Court, particularly the email correspondence annexed by LNN, clearly shows that CIM’s Advocates were copied in the communications titled “Publication of Award.” At no point did CIM lodge a formal protest before the arbitrator or the tribunal alleging non-receipt. This belated assertion is therefore an afterthought, lacking candour, and is indicative of bad faith. 9. Similarly, for the avoidance of doubt, CIM’s reliance on the fact that CHYS is under liquidation is misplaced. The pendency of liquidation proceedings does not, in my view, bar the recognition of an arbitral award. Recognition is a procedural step concerned solely with converting the arbitral award into a judgment of the Court. Questions relating to creditor ranking, priority, or distribution of assets are matters reserved for the execution stage perhaps within the liquidation process. They cannot be invoked to defeat or delay the recognition of an otherwise valid arbitral award. 10. I therefore find merit in the Preliminary Objection. CIM’s application to set aside the awards is struck out for want of jurisdiction. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13373/eng@2025-09-26 2

page 2 of 3

The Application for Recognition and Enforcement: 11. Having disposed of the setting aside application, I now turn to LNN’s application for recognition and enforcement. 12. Section 36 of the Arbitration Act provides that a party relying on an arbitral award must produce the duly authenticated original award or a certified copy thereof and the original arbitration agreement or a certified copy thereof. LNN has annexed both the arbitration agreement and the certified copies of the awards. CIM does not contest the authenticity of these documents. 13. The statutory requirements for recognition and enforcement have been duly met. In Christ for All Nations v Apollo Insurance Co. Ltd, [2002] 2 EA 366, the Court emphasized that once an arbitral award satisfies the threshold under Section 36 of the Arbitration Act, the Court is enjoined to recognize and enforce it, save for the narrow exceptions provided under Section 37. CIM has not demonstrated any of the grounds contemplated under Section 37, whether as to incapacity, invalidity of the agreement, breach of natural justice, or public policy. In the absence of such proof, this Court is duty-bound to give effect to the awards. 14. I have also considered the objections belatedly raised by CIM, including alleged violation of equality of parties under Section 19 of the Act, claims that the arbitrator exceeded her jurisdiction, and assertions of error in determination. These arguments are devoid of merit. There is no evidence that they were properly raised before the arbitrator for adjudication in the first instance. Arbitration, by design, is a self-contained process, and parties are bound by the record they made before the tribunal. More fundamentally, Section 10 of the Arbitration Act firmly curtails this Court’s jurisdiction, barring it from sitting as an appellate forum over the factual conclusions of the arbitrator. To invite this Court to re-evaluate the merits of the award would be to subvert the principle of finality that underpins the arbitral process. Conclusion and Orders 15. Accordingly, and for these reasons, I make the following orders: i. The Preliminary Objection dated 10th December 2024 and filed by LNN is upheld. ii. The application dated 11th November 2024 filed by CIM seeking to set aside the arbitral awards is struck out for want of jurisdiction. iii. The application dated 24th July 2024 by LNN is allowed. The arbitral award dated 3rd May 2024 and the additional award dated 3rd July 2024 are hereby recognized and adopted as judgments of this Court. Leave is granted to LNN to enforce the same as decrees of this Court. iv. Costs of both applications shall be borne by CIM. It is so ordered. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 26TH DAY OF SEPTEMBER 2025. F. MUGAMBI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13373/eng@2025-09-26 3

page 3 of 3