High Court 727 of 2026

RULING 1. Before the Court for determination is the chamber summons dated 23/09/2024 filed by Isaac Aluochier t/a Aluochier Dispute Resolution (hereafter the Applicant) as against Ali Abdi Bule & 1987 Others (hereafter the Respondents) and Lempaa Vincent Suyianka (hereafter Interested Party) seeking inter alia: a. That the officers in the appropriate legislative assemblies that the non-speaker Respondents were elected to automatically became vacant upon their change of political party membership status, pursuant to Article 103(1)(e) and 194(1)(e) of the Constitution. b. That the non-speaker Respondents unlawfully received salaries and other remuneration during their periods of unlawful occupation of office. c. That the non-Speaker Respondents, following vacancies that arose in offices on account of their change in political party membership status, contravened Article 74 of the Constitution by assuming the vacant offices and performing the functions of office without having first taken or subscribed to the oath or affirmation of office. d. That the non-Speaker Respondents failed to satisfy, during their periods of unlawful occupation of office, moral and ethical requirements prescribed by the Constitution or an Act of Parliament, pursuant to Articles 99(1)(b) and 193(1)(b) of the Constitution, and subsequently contravened Sections 12A and 13 of the Leadership and Integrity Act, 2012. e. That the non-Speaker Respondents are found to have misused legislative State office during their periods of unlawful occupation of office, pursuant to Articles 99(2)(h) and 193(2)(g) of the Constitution. f. That the non-Speaker Respondents fully compensate the public for all salaries and other remuneration unlawfully received during their periods of unlawful occupation of office, the compensation to include simple interest payable at the rate of 12% per annum, calculated from when the unlawful payments were received by them. g. That this arbitral tribunal declines to make a recommendation that criminal proceedings be instituted against the Respondents, for want of jurisdiction in criminal proceedings. h. That the non-Speaker Respondents, on account of having failed to satisfy the moral and ethical requirements prescribed by the Constitution or an Act of Parliament, pursuant to Articles 99(1)(b) and 193(1)(b) of the Constitution, are not eligible for election to the offices of President, Deputy President, Member of Parliament, Governor, Deputy Governor and Member of County Assembly. i. That subject to Articles 99(3) and 193(3) of the Constitution, the legislative offices currently occupied by non-Speaker Respondents have become vacant pursuant to the operation of Articles 103(1)(g) and 194(1)(g) of the Constitution. j. That the executive offices of county governor and deputy county governor currently occupied by non-Speaker Respondents have become vacant by the operation of Article 182(1)(c) of the Constitution, as read together with Articles 180(2) and (5) and 193(1)(b) of the Constitution. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/727/eng@2026-01-29 2

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k. That the Speakers of the various legislative assemblies who failed to give written notices to the Independent Electoral and Boundaries Commission within twenty-one days of legislative office vacancies occurring share jointly and severally with the non-Speaker Respondents in compensating the public for the unlawful salaries and other remuneration received by the nonSpeaker Respondents. l. That the Respondents pay the costs and expenses of the arbitration, being the legal and other expenses of the Claimant, the fees and expenses of the arbitral tribunal and any other expenses related to the arbitration, as detailed in Annexures IAPA-01 and IAPA-02 of this award, including simple interest as from the date of this award at 4% per annum above the Central Bank of Kenya base lending rate, subject to a minimum of 12% per annum. The legal fees due to the Claimant are as per Schedule 11 of the Advocates Remuneration Order of the Advocates Act, on a party and party basis, including simple interest as from the date of this award at 4% per annum above the Central Bank of Kenya base lending rate, subject to a minimum of 12% per annum. m. AND the costs of this Application. 2. The application is premised on grounds found at the supporting affidavit sworn by the Applicant on even date. The gist of his deposition is that the Interested Party, being the claimant in an arbitration proceeding, commenced arbitration proceedings on 10/04/2024 by submitting to the Applicant his request for arbitration and paid the requisite filing fees in respect of the same. That as an Arbitration Agreement between the Interested Party and the Respondents, the former relied on Article 2 & 50(1) of the Constitution. He goes on to depose that by dint of the latter provision, it binds all persons, to wit, no further agreement or consent is needed between disputants with respect to the forum of dispute resolution, as it is indeed every person's right to select either a Court or another independent and impartial tribunal or body, to wit, a selection of either forum is valid and recognized under the Constitution. 3. He goes on to depose that by dint of Section 4(1) and 36(3) of the Arbitration Act, the arbitration contract and clause can be discerned from Article 50(1) of the Constitution. Thus, having been appointed as an Arbitrator in respect of the dispute between the Interested Party and the Respondents, he proceeded to render and or delivered an arbitral award over the dispute on 21/07/2024. He further deposes that the arbitral Award is not an affront to any of the grounds set out in Section 37(1)(a) & (b) of the Arbitration Act, to wit, this Court may decline to recognize or enforce the said arbitral award. In conclusion, he deposes that by dint of Section 32A of the Arbitration Act, the arbitral award is final and binding upon the Interested Party and Respondents therefore this Court ought to recognize and enforce the award dated 21/07/2024 as a decree, order or judgment of this Court. 4. Despite service, the Respondents did not participate in the instant proceedings. 5. The Interested Party on his part filed grounds of opposition dated 04/03/2025 in response to the Applicant’s chamber summons. He took issue with the application on grounds that-; there is no award capable of adoption by this Court as there were no arbitration proceedings known to the Arbitration Act and the entire process leading to the application herein is illegal, unconstitutional, amounts to criminal activity and is an abuse of the legal process; and that the matter in question fall under the jurisdiction of and have been settled by the High Court. 6. The chamber summons was disposed of by way of written submissions. Having duly considered the material alongside the submissions on record, this Court conscientiously postulates that the twin issues for determination concern-; https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/727/eng@2026-01-29 3

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a) Whether the Court ought to recognize and enforce the arbitral award published on 21/07/2024? b) Who ought to bear the costs of the application? Whether the Court ought to recognize and enforce the arbitral award published on 21/07/2024? 7. Arbitral proceedings are codified in Article 159(2)(c) of the Constitution and operationalized by the Arbitration Act. Further, consensus emanating from superior Court decisions within our jurisdiction, is that interference with arbitral proceedings must be limited, as an encroachment would negate the purpose and intent of the Act towards expeditious yet fair dispute resolution. See Nyutu Agrovet Limited v Airtel Networks Kenya Limited; Chartered Institute of Arbitrators-Kenya Branch [2019] KESC 11 (KLR). 8. However, before proceeding to consider the above framed issue, it would be apt to state that the Interested Party having opted to oppose the application by way of grounds of opposition, confined himself to issues of law and legal arguments only, as observed by the Court of Appeal in Blue Thaitian SRL (Owners of the Motor Yacht ‘Sea Jaguar’) v Alpha Logistics Services (EPZ) Limited (Civil Appeal (Application) E012 of 2020) [2022] KECA 1240 (KLR). Whereas, a cursory review of the Interested Party’s grounds in opposition, it appears to tacitly invite this Court to canvass factual issues in clear contravention of the dicta in Blue Thaitian SRL (supra). 9. That said, the facts leading to the arbitral award sought to be recognized and or enforced are quite peculiar as can be garnered from the Applicant’s affidavit material, earlier set out in this ruling. Nevertheless, it is not in contention that the Applicant presided over arbitral proceedings the same having been preferred by the Interested Party. It is further not in dispute that consequent to the above, an arbitral award issued on 21/07/2024, of which curiously, the Applicant as Arbitrator, seeks this honorable Court to recognize and or enforce the same. Meanwhile, notwithstanding the above, no material has been placed before this Court demonstrative of a challenge to the arbitral award by dint of Section 35 of the Arbitration Act. 10. As may concern recognition and enforcement of a domestic arbitral award, pertinent to the same is Section 36 (1) & (3) of the Arbitration Act which provides that-; (1) A domestic arbitral award, shall be recognized as binding and, upon application in writing to the High Court, shall be enforced subject to this section and section 37. (2) ……………………… (3) Unless the High Court otherwise orders, the party relying on an arbitral award or applying for its enforcement must furnish— (a) the original arbitral award or a duly certified copy of it; and (b) the original arbitration agreement or a duly certified copy of it.” 11. Meanwhile, Section 37 of the Act provides for grounds upon which an application to enforce an arbitral award can be refused or award set aside. The provisions of Section 36(1) & (3) and 37 of the Act inter alia require the party seeking to enforce an arbitral award to furnish the original arbitral award or a duly certified copy thereof and the original arbitral agreement or duly certified copy thereof, alongside the application for recognition. 12. On the latter, the Applicant has anchored his argument on the fact that by dint of Article 1(3)(c), 2 & 50(1) of the Constitution, there existed an arbitration agreement as between the Interested Party and https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/727/eng@2026-01-29 4

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Respondents. It was further submitted that Section 2 of the Arbitration Act, Section 33(1) of the Kenya Airports Authority Act, Section 83(1) of the Kenya Railways Corporation Act, Section 29 of the Kenya Road Act, being empowering provisions on arbitration are not an arbitration agreement as provided for in Section 4 of the Arbitration Act, but the laws themselves. 13. That other than arbitration agreements, arbitration may be empowered by legislative provisions therefore it is a fallacy to believe that a valid arbitration can only be sanctioned where there is an arbitration agreement. It was further submitted that by dint of Article 50(1) of the Constitution, Section 12(9) and 13(1) & (3) of the Arbitration Act, arbitral tribunals fall under the category of independent and impartial tribunals therefore the Interested Party was well within his rights to choose between a Court of law and another independent tribunal to present his dispute, as he did. 14. With the above arguments in reserve, the Applicant has called upon this Court to recognize and enforce the arbitral award. 15. As to the nature of arbitral proceedings, the Supreme Court in Geo Chem Middle East v Kenya Bureau of Standards [2020] KESC 1 (KLR) succinctly put it that-; “ We must reiterate that arbitration is meant to expeditiously resolve commercial and other disputes where parties have submitted themselves to that dispute resolution mechanism.” 16. Earlier, in Synergy Industrial Credit Limited v Cape Holdings Limited [2019] KESC 12 (KLR), the same Court addressed itself as follows concerning arbitration-; “ One of the key characteristics that sets arbitration apart from other alternative dispute resolution mechanisms is flexibility and party autonomy. Party autonomy “ is an intrinsic attribute… that gives the parties to arbitration proceedings the power and authority to decide within the confines of the law who, where, when and how the arbitral proceedings will be conducted. ” At the time of entering into a contract, parties enjoy broad flexibility and freedom to construct a dispute resolution mechanism of their choice. They choose the law to govern their dispute resolution, designate the number of arbitrators to resolve their disputes as well as their qualifications and the procedure they would like to be followed. 17. More recently, the Court of Appeal in Kibuwa Leasing & Management Limited v Jadala Investments Limited & another [2023] KECA 895 (KLR) while acknowledging the decision in Geo Chem Middle East (supra) observed that arbitral proceedings are private, consensual and contractual in nature and are designed to guarantee expeditious dispute resolution. 18. Patently, the above renditions are codified in Section 3 of the Arbitration Act which describes an “arbitration agreement” to mean “ an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not” 19. Whereas Section 4 of the same Act describes forms of arbitration agreements as-; (1) An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement. (2) An arbitration agreement shall be in writing. (3) An arbitration agreement is in writing if it is contained in— https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/727/eng@2026-01-29 5

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(4) (a) a document signed by the parties; (b) an exchange of letters, telex, telegram, facsimile, electronic mail or other means of telecommunications which provide a record of the agreement; or (c) an exchange of statements of claim and defence in which the existence of an agreement is alleged by one party and not denied by the other party. The reference in a contract to a document containing an arbitration clause shall constitute an arbitration agreement if the contract is in writing and the reference is such as to make that arbitration clause part of the contract. 20. Given the above, this Court is not convinced by the Applicant’s argument that by dint of Article 1, 2 & 3(c) of the Constitution and Section 2 of the Arbitration Act that Article 50(1) of the Constitution constituted an arbitration agreement as between the Interested Party and Respondents. As earlier observed, arbitration agreements are private, consensual and contractual in nature whereas by dint of Article 1, 2 & 3(c) of the Constitution, do not aid the Applicant’s argument and or operationalize Article 50(1) of the Constitution, to constitute an arbitration agreement. 21. While various statutes such as Kenya Airport Authorities Act, Kenya Ports Authority Act, Kenya Railways Corporation Act, Kenya Roads Act, Sports Act, Public Procurement and Asset Disposal Act, Insolvency Act, Central Bank Act and Investment Promotion Act may provide for and or recognize arbitration as an avenue to resolve certain despite in the respect of the respective statutes, that in itself, does not necessarily accord a party to unilaterally resolve to have a dispute resolved by way of arbitration by dint of Article 50(1) of the Constitution where there is no consensual and or contractual acquiesces to have the dispute determined by way of arbitration. 22. It must be distinguished that while Section 31(1) of the Kenya Airport Authorities Act, Section 62(1) of the Kenya Ports Authority Act, Section 83(1) of the Kenya Railways Corporation Act and Section 29 of the Kenya Roads Act provide for arbitration as an avenue towards settlement of specific disputes within the Act themselves, the same does not necessarily translate that by dint of Article 50(1) of the Constitution and Article 159(2)(c) of the Constitution, the said provisions can transmute to be an arbitration agreement, to wit, any person can unilaterally opt to have his or her dispute settled by way of arbitration in the absence of consensual and contractual acquiesces. 23. That said, while arbitration is undoubtedly a useful and expeditious mechanism for settling disputes, concomitantly Section 36 of the Arbitration Act is designed to enhance the enforcement of the arbitral awards. On the matter, I concur with Nzioka J. in Riley Services Limited v Attorney General of the Republic of Kenya & another [2019] eKLR where she stated that: “ The provisions of Section 36(2) of the Arbitration Act are couched in mandatory terms ………… failure to comply with the same renders the application incurably defective..” 24. Section 36(3) of the Arbitration Act is couched in mandatory terms. And it is apparent given this Court’s earlier rendition that the Applicant’s chamber summons is non-compliant with Section 36(3) (b). In the absence of an original arbitration agreement, the Court is of the view that the enforcement motion is incompetent for non-compliance with the provisions of Section 36(3) (b) of the Act. The motion is therefore struck out with no order as to costs. Orders accordingly. DELIVERED DATED AND SIGNED AT NAIROBI THIS 29TH DAY OF JANUARY, 2026. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/727/eng@2026-01-29 6

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………………………. JANET MULWA. JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/727/eng@2026-01-29 7

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