Ngomo Multipurpose Cooperative Society Limited v Rophy Engineering Company Limited

time barred under Section 35 (3) of the Arbitration Act on whose basis the court herein dismissed the application. That the application herein ofiends the spirit and intent of the Arbitration Act which limits judicial intervention in arbitral proceedings under Section 10 of the Arbitration Act. 4. The Respondent in their Replying Affidavit further stated that there is no right of appeal against a decision made under Section 35 of the Arbitration Act unless leave is granted under exceptional circumstances, which the Applicant has neither sought nor obtained. That the Applicant is seeking an appeal disguised as a review contrary to finality and autonomy principles that underpin arbitration proceedings. 5. The Respondent stated that no new evidence or error apparent on the face of the record has been demonstrated by the Applicant to warrant a review under Order 45 of the Civil Procedure Rules. Further, the Civil Procedure Act and Rules do not apply to arbitration proceedings by virtue of Section 10 of the Arbitration Act. That this court has rendered itself functus officio with respect of timelines under Section 35 (3) of the Arbitration Act and that the application therefore ought to be dismissed with costs. 6. The Application was canvassed by way of written submissions. The Applicant in the submissions dated 06/10/2025 pointed out that the issue of the date of ruling of 06/11/2024 instead of 06/12/2024 was addressed at the first mention of the application herein and the record corrected. 7. The Applicant further submitted that this court is conferred with jurisdiction under Order 45 Rule 1 of the Civil Procedure Rules that a review would lie on the grounds set out therein as well as on any other sufficient ground, and that the basis for seeking the review herein is within the ambit of the rule. 8. This court has the power to revisit its ruling which position was reaffirmed by Mativo, J (as he then was) in R v Advocates Disciplinary Tribunal ex parte Apollo Mboya [2019] KEHC 6379 (KLR) and the Court of Appeal in Nyamogo & Nyamogo Advocates v Kogo [2001] 1 EA 173. The Applicant submitted that an essential part of the record may have been overlooked by the court in a determination sought to be reviewed. 9. The Applicant prayed that the application be allowed, and the motion for setting aside the arbitral award dated 29/01/2024 be allowed to proceed to hearing, with the order upholding the Preliminary Objection by the Respondent set aside and/or reviewed. 10. The Respondent in the submissions dated 07/10/2025 submitted that Section 10 of the Arbitration Act restricts judicial intervention in arbitration matters and that the only avenue for court intervention is through Section 35 of the Act which ought to be within 3 months of receipt of the award and that once that period lapses, the court becomes functus officio. 11. The Respondent relied on the holdings in Total Steward Services Ltd v Bar Next Door Ventures Ltd (Arbitration Cause E084 of 2024) [2025] KEHC 4065 (KLR) and Neelcon Construction Services Ltd v Kakamega County Assembly Services Board [2023] KEHC 20003 (KLR) in support of the position. 12. On whether review is available under Order 45 of the Civil Procedure Rules, the Respondent submitted that the Civil Procedure Act and Rules do not apply to arbitration proceedings as it was held in Kenya Shell Limited v Kobil Petroleum Limited (2006) eKLR. That additionally, the Applicant has failed to demonstrate grounds for review which are discovery of new and important evidence not previously available, error apparent on the face of the record or any other sufficient reason. 13. The Respondent further cited the case of Republic v Advocates Disciplinary Tribunal Ex Parte Apollo Mboya (2019) eKLR where it was held that review is not a substitute for appeal and cannot be used to re-argue a case already decided. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19588/eng@2025-11-27 2

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14. The Respondent further submitted that once the court pronounced itself on the preliminary objection, and dismissed the earlier application, it became functus officio on the issue of limitation under Section 35 (3) which position was echoed in Telkom Kenya Ltd v John Ochanda (suing on his behalf and on behalf of 996 former employees of Telkom Kenya Ltd) (2014) eKLR and in Re Estate Of The Late Joab Odero Odero (deceased) (Succession Cause 227 of 1993) [2025] KEHC 6404 (KLR). 15. The Respondent further submitted that filing a second motion on the same subject matter after the court has already pronounced itself constitutes an abuse of the court process. That in Muchanga Investments Limited v Safaris Unlimited (Africa) Ltd & 6 others (2009) eKLR, the Court of Appeal described abuse of process as the improper use of the judicial process by a party in litigation to interfere with due administration of justice. 16. That the Supreme Court in Nyutu Agrovet Limited v Airtel Networks Kenya Limited; Chartered Institute of Arbitrators – Kenya Branch (Petition 12 of 2016) [2019] KESC 11 (KLR) held that there is no automatic right of appeal from a High Court decision under Section 35 of the Arbitration Act. 17. The Respondent further stated that this position was reaffirmed by the Supreme Court in Synergy Industiral Credit Ltd v Cape Holdings Ltd (Civil Appeal 81 of 2016) [2020] KECA 223 (KLR) where courts were cautioned to uphold the finality and autonomy of arbitration. 18. The Respondent therefore prayed for dismissal of the application herein in its entirety with costs. Determination 19. Having considered the Notice of Motion application, the Replying Affidavit and submissions by the parties, the issues for determination are: a. Whether this court has jurisdiction to entertain the application for review b. Whether the threshold for review has been met c. What orders on costs should issue 20. This court must first determine if it has jurisdiction to make a determination on the application for review. It is well settled in law that jurisdiction is everything and without it, the court should just but down its tools and cannot entertain any proceedings in the matter. (See Owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd (1989) KLR 1). 21. The Respondent argues that this court has got no jurisdiction by virtue of section 10 and 35 of the Arbitration Act, which must be interpreted within the context of finality. The case of Nyutu Agrovet Limited (supra) was relied on in support of the argument. 22. The Applicant o the other hand stated that the court had jurisdiction to review the ruling under order 45rule 1, as the court used the date when the parties were notified that the arbitration ruling was ready as opposed to when it was delivered, causing this court to make a finding that the application under section 35 of the Arbitration Act had been filed out of time. 23. I am alive to the school of thought that the court has got no jurisdiction to review its orders for applications brought under section 35 of the Arbitration Act. (see Kenya Shell Limited case (supra). However, I depart from that position on grounds that the application which was brought under section 35 of the Arbitration Act which sought to have the arbitral award set aside was not determined on merit. It was struck out based o the Preliminary Objection dated 18/03/2024. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19588/eng@2025-11-27 3

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24. I have perused through the ruling of this court dated 06/12/2024. In paragraph 7, it states as follows; “ I have perused through the Arbitral Award. It was delivered on 07/08/2023. This application was filed on 28/12/2023, which is over 4 months after the delivery of the award. I do agree with the respondent that the application was filed out of time.” 25. This court having not evaluated the matters brought before it in the Notice of Motion dated 19/12/2023, I find this court has jurisdiction to review its orders subject to meeting the threshold of granting of review orders. 26. The Jurisdiction of this Court to grant review is well set out in the law. Section 80 of the Civil Procedure Act states that: “ Any person who considers himself aggrieved— 21. (a) by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or (b) by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit”. Order 45 Rule 1 of the Civil Procedure Rules provides for Review and it states as follows: “ (1) Any person considering himself aggrieved— (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or (b) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay. (2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review” 7. In reference to the reasoning of Kuloba J (as he then was) in Lakesteel Supplies vs. Dr. Badia and Anor Kisumu HCCC No. 191 of 1994 he stated as follows; “ The exercise of review entails a judicial re-examination, that is to say, a reconsideration, and a second view or examination, and a consideration for purposes of correction of a decree or order on a former occasion. And one procures such examination and https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19588/eng@2025-11-27 4

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correction, alteration or reversal of a former position for any of the reasons set out above. The court of review has only a limited jurisdiction circumscribed by the definitive limits fixed by the language used in Order 45 rule 1, of the Civil Procedure Rules. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. It can only lie if one of the grounds is shown, one cannot elaborately go into evidence again and then reverse the decree or order as that would be acting without jurisdiction, and to be sitting in appeal. The object is not to enable a judge to rewrite a second judgement or ruling because the first one is wrong…On an application for review, the court is to see whether any evident error or omission needs correction or is otherwise a requisite for ends of justice. The power, which inheres in every court of plenary jurisdiction, is exercised to prevent miscarriage of justice or to correct grave and palpable errors. It is a discretionary power. In the present application it has not been said or even suggested that after the passing of the order sought to be reviewed, there is a discovery of new and important matter of evidence which, after the exercise of due diligence, was not within the applicant’s knowledge or could not be produced by him at the time when the ruling was made.” 8. From the provisions of Order 45 (1) (b) of the Civil Procedure Rules, it must be shown that; a. There was an error or omission on the part of the court that needs correction b. If there was a discovery of new and important matter discovered after the order sought to be reviewed. 27. Upon perusal of the Notice of Motion dated 19/12/2023, the Supporting and the Annexures thereto. It is a fact that the court made reference to 07/08/2023 as the date when the award was delivered yet it was the date when the parties were notified that the award was ready and would only be released subject to payment of the Arbitrator’s fees. (See the letter dated 07/08/2023 marked as Applicant’s annexure “K” at page 97). 28. Vide the email dated 27/09/2023 from the Arbitrator, addressed to the Advocates for the parties, the receipt of the arbitrator’s fees was confirmed and parties given the go-ahead to collect the award. (See annexure “L” at page 98). It is therefore deemed that the award dated 07/08/2023 was released and made available to the parties on 27/09/2023. 29. The Notice of Motion dated 19/12/2023 seeking to set aside the arbitral award was filed on 22/12/2023 as per the CTS. I note that paragraph 7 of the impugned ruling stated that date of filing the application as 28/12/2023, which is another error apparent on the face of the record. The application made under section 35 of the Arbitration Act was therefore not time barred, and the Preliminary Objection ought to have been dismissed. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19588/eng@2025-11-27 5

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30. This court inadvertently made an error by using the date of the award, that is 07/08/2023, as the date the award was received by the parties. Section 35 (3) of the Arbitration Act 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, (emphasis mine), 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.” 31. It is clear that the court made an error apparent on the face of the record when it used the date of the award as the date that he parties received the award, therefore arriving at the wrong decision in terms of the timelines under section 35(3) of the Arbitration Act. The Applicant ought not to be punished for the mistake of the court, and I find that no prejudice shall be occasioned to the Respondent if the application for review is allowed as prayed. 32. On costs, considering that the court made the mistake on the date when the award was delivered to the parties, each party shall bear its own costs. 33. Having found as above, the following orders flow therefrom: - a. The Notice of motion dated 29/01/2025 has merit and is allowed on the following terms; b. i. The ruling dated 6/12/2024 is hereby reviewed and the date of delivery of award amended to read “27/09/2023” instead of “07/08/2023”. ii. The Notice of Preliminary Objection dated 18/03/2024 has got no merits and is hereby dismissed. iii. The Notice of Motion dated 19/12/2023 is hereby reinstated. Each party to bear its own costs. Orders accordingly. DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 27TH DAY OF NOVEMBER, 2025. ........................... HON. F. WANGARI JUDGE In the presence of: N/A by the Applicant Ms. Chepwogen Advocate h/b for Maluki Advocate for the Respondent Ms. Salwa, Court Assistant F. Wangari, J. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19588/eng@2025-11-27 6

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