Kenya Pipeline Company Limited v Nyanza Club

ii. An order compelling the Respondent to pay Ksh.5,750,000/- to the Claimant being compensation to the damages caused tomits golf course. iii. An award of interest in (ii) above. iv. An order compelling the Respondent to settle the oneoff clearance cost of Ksh.3,000,000/- of the easement area and thereafter a monthly maintenance cost of Ksh.150,000/-. v. The monthly maintenance cost in (iv) above to attract a ten (10) percent annual increment during the subsistence of the easement agreement. vi. General damages for breach of contract. vii. Costs plus interest therefrom of the arbitration proceedings. viii. Any other relief that this Honourable Tribunal may deem just and expedient. 2. The parties presented their respective cases before the sole arbitrator Hon. John Olago Aluoch, CBS who, upon hearing the parties, set out the issues for determination as follows: i. Whether the Respondent was in breach of the easement agreement between it and the Claimant. ii. Whether the Claimant is entitled to the reliefs sought. 2|Page

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iii. Whether the Claimant is entitled to costs. 3. On 23rd January, 2025, the Arbitrator rendered his final award, in favour of the Respondent and against the Applicant, as follows: i. Special damages for oil spillage – Ksh.5,750,000/-. ii. Special damages for maintenance of easement area – Ksh. 4,800,000/-. iii. Monthly maintenance from November, 2022 to date – Ksh.4,050,000/-. iv. General damages for constitutional infringement – Ksh.100,000,000/-. v. Arbitrator’s fees – Ksh.400,000/-. vi. Costs of travel and accommodation for Claimant’s Counsel – Ksh.100,000/-. vii. Total award – Ksh.115,100,000/-. 4. Following the delivery and publication of the award, the Respondent filed the application by motion on notice dated 3 rd February, 2025 which sought the following orders: 1. THAT….[Spent]. 2. THAT….[Spent]. 3|Page

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3. THAT this Honourable Court be pleased to set aside the arbitral award published by the sole Arbitrator Hon. John Olago Aluoch, CBS on 23rd January, 2025. 4. THAT costs of this application be borne by the Respondent. 5. The grounds upon which the application is premised are set out on its face and are as follows: 1. That the Arbitrator exceeded his mandate and jurisdiction by sitting as a constitutional court and determining matters that touch on the provisions of the Articles of the Constitution of Kenya which are beyond the scope of the arbitration agreement. 2. That the final arbitral award contravenes the public policy of Kenya by awarding an unjustified, punitive and unconscionable monetary amount to the Respondent. 3. That the Arbitrator failed to adhere to the principles of natural justice by disregarding key evidence and submissions presented by the Applicant. 4. That the award is contrary to the provisions of Section 35(2) (a) and (b) of the Arbitration Act. 5. THAT the Arbitrator exhibited open biasness and opted to step in and submit on behalf of the Claimant which is a clear indicator of an Arbitrator who has a key interest in the matter. 4|Page

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6. The application is supported by the affidavit of Nelson O. Nyaduwa, the Applicant’s Senior Legal Officer sworn on 3 rd February, 2025. The said deponent has in his affidavit restated and expounded on the above grounds. 7. In his affidavit, the deponent restated the history of the dispute and expounded on the above grounds. He annexed to his affidavit a copy of the easement agreement dated 26 th November, 1992, a copy of the certified proceedings from the arbitral tribunal, a certified copy of the final arbitral award dated 23rd January, 2025, copies of the pleadings filed in the arbitral tribunal, among other documents. 8. In opposing the application, the Respondent filed a replying affidavit sworn on 27th February, 2025 by its secretary Albert Ojonyo and therein stated that the Respondent further relied on another (previous) affidavit that he swore in support of an application dated 24th January, 2025. 9. In precis, Mr. Ojonyo stated that none of the grounds under Section 35 of the Arbitration Act had been presented by the Appellant to warrant the setting aside of the arbitral award and that what the Applicant had done through its application was to invite this court to consider a challenge on the merits of the final arbitral award and the competency of the 5|Page

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Arbitrator, which are not permissible under Section 35 of the Act. 10. The Respondent’s secretary made further depositions that the Applicant’s motion was anchored on a misconstruction and/or misinterpretation of the arbitral award as to its nature, manner and instance of exercise of the Arbitrator’s mandate. 11. With regard to the ground of alleged contravention of jurisdictional limits by the Arbitrator, Mr. Ojonyo stated that the final award did not in any manner involve the interpretation or interrogation of the Constitution and did not, therefore, go afoul of Article 165(3)(a) of the Constitution as the Arbitrator merely considered the text of Articles 40 and 42, which did not amount to invoking the jurisdiction contemplated under Article 165(3)(b). 12. In respect of the averment in the supporting affidavit that there would be a loss of public funds if the award is not set aside, the Respondent’s secretary stated in his affidavit that state corporations were bound by contractual obligations and were subject to applicable arbitration proceedings. 13. On the point that there was perceived or apparent bias on the part of the Arbitrator stemming from his alleged membership to the Respondent, Mr. Ojonyo deposed that the Arbitrator was struck off from the membership of the 6|Page

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Respondent in 2019 and was not, at the time of the arbitration proceedings a member of the Respondent. 14. To that end, the deponent annexed as “AO-18”, “AO-19”, “AO-20”, “AO-21”, “AO-22”, “AO-23”, “AO-24” and “AO-26” documents to support that position. The deponent stated that in any event, the Arbitrator, upon being appointed by the Law Society of Kenya, disclosed through an email dated 22nd April, 2024 (“AO-30”) that he was an erstwhile member of the Respondent and the Applicant consented to his appointment. 15. The record of this court bears it that the Respondent filed the chamber summons dated 24th January, 2025 in which the following orders were sought: 1. THAT….[Spent]. 2. THAT the Honourable Court be pleased to issue an order recognizing and enforcing the arbitral award issued on the 23rd day of January, 2025 by Hon. John Olago Aluoch, CBS, Advocate, M.CIArb as a judgement of the High Court of Kenya. 3. THAT costs of the application be awarded to the Applicant. 16. The grounds upon which the application is premised are briefly that the final arbitral award issued on 23 rd January, 2025 is under Section 32A of the Arbitration Act valid, final 7|Page

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and binding on the parties and that the Respondent was through the application seeking to invoke this court’s jurisdiction under Section 36 of the Arbitration Act in order that the final arbitral award is recognized and enforced as the judgement of this court. 17. The chamber summons application is accompanied by and grounded upon the sworn affidavit of Albert Ojonyo, in which he reiterates the foregoing grounds and provides further elaboration and detailed explanation in support of the same. 18. The chamber summons application is contested through the sworn affidavit of Nelson O. Nyadiwa, in which he relies on and reiterates the aforementioned grounds for the setting aside of the final arbitral award, and advances them as the principal reasons upon which the application seeking the recognition and enforcement of the arbitral award ought to be declined. 19. Vide a notice of motion dated 14th February, 2025, Fanuel Charles Gaya and Robinson Adera Oyugi sought to be joined as Interested Parties in the instant proceedings and further sought leave to participate in the instant proceedings. 20. The application for joinder by the two parties was allowed by the consent of the parties on 1 st April, 2025. The parties further agreed that the application for setting aside of the 8|Page

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arbitral award be heard by way of written submissions and the parties complied with the directions and filed their respective submissions. 21. In arbitration proceedings, where a party files an application for the setting aside of an arbitral award and the opposing party files an application for the recognition of the same award, the proper route for the court to take is the one that I discussed in the case of County Government of Kisumu v Coretec Systems & Solutions Limited (Commercial Arbitration Cause E001 of 2023) [2025] KEHC 13909 (25 September 2025) (Ruling) in which I made the following observations: “34. In a nutshell, the argument fronted by the Applicant is that, it is irregular for the court to hear an application for recognition and enforcement of an arbitral award before hearing and determining a pending application to set aside the same award and that if the court did so, that would contravene both the Arbitration Act and Article 50 of the Constitution, which provides for the right to a fair hearing. 35. While Section 36 of the Arbitration Act provides for recognition and enforcement of an arbitral award, Section 37 of the Act allows a party to apply for setting aside an arbitral award grounds. 9|Page on specific

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36. Notably, Section 36(2) provides that: “An arbitral award shall be recognized as binding and enforced in accordance with the provisions of this section unless it is set aside or suspended by a court of competent jurisdiction.” (Underlined emphasis). 37 . This, in my view, implies that recognition and enforcement can only proceed if the award is not subject to a pending setting aside application, or unless the court determines that such an application is unmeritorious. 38. Courts have generally held that applications for recognition and enforcement and applications to set aside should be considered together or that the setting aside application should be determined first. This, I think is meant to avoid a possibility of conflicting decisions and premature enforcement of an award that might be invalidated and to avoid undermining the right to challenge an award under Section 37. 39. In the case of Christ for All Nations v Apollo Insurance Co Ltd [2002] 2 EA 366 the Court of Appeal held that where an application to set aside an arbitral award has been filed, it is prudent for the court to defer enforcement proceedings until the 10 | P a g e

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setting aside application is heard and determined. The court stated that: “It would be imprudent for the High Court to recognize and enforce an award that is under challenge.” 40. The correct approach would in my view therefore be for the court to either order for the consolidation of the two applications (for recognition/enforcement and for setting aside), or to hear them together or to determine the one seeking for the setting aside of the award first, then proceed with enforcement if the award survives.” 22. The foregoing being the position in law, the parties herein proffered the correct position that the application for setting aside the award be heard first as it has a direct bearing on the course that the application that seeks enforcement and adoption of the award will take. 23. I will, consequently, proceed to consider and determine the application seeking the recognition and enforcement of the arbitral award only after I have first addressed and rendered a decision on the application that seeks to set aside the said award. B.The Applicant’s submissions on the notice of motion dated 3rd February, 2025. 11 | P a g e

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24. In its submissions, the Appellant states, in support of its first ground, that in the proceedings before the Arbitrator, the reliefs that the Respondent sought against the Applicant were based on alleged contractual breaches and that no prayer was made based on constitutional violations or infringements under Articles 43, 46 and 47 and that as such, the Arbitrator not only exceeded the scope of the arbitration dispute but also went on to address matters concerning constitutional violations, which matters are an exclusive preserve of the High Court. 25. In particular, the Appellant submitted that the Arbitrator awarded the Respondent Ksh.100,000,000/-, citing constitutional infringements and consumer rights violations under the three Articles of the Constitution, which matters and/or reliefs were beyond his jurisdiction. 26. In a nutshell, the Applicant submitted that the Arbitrator lacked jurisdiction to interpret the three Articles of the Constitution, which mandate is constitutionally a preserve of the High Court in line with Section 165(3)(d)(i) of the Constitution. The Applicant thus proffered the position that the arbitral award went afoul of Section 19 of the Arbitration Act which mandates fairness and strict adherence to the scope of the dispute. 12 | P a g e

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27. The second ground that the Applicant presented was that the Arbitrator’s membership in Nyanza Club (the Respondent) established a palpable conflict of interest thus breaching Section 13 of the Arbitration Act and the constitutional dictates of impartiality under Article 50(1) of the Constitution. 28. The third ground that the Applicant presented in its submissions related to the evidence that was adduced before the Arbitrator. The Applicant urged that forensic evidence that was tendered revealed that some of the documents tendered in evidence by the Respondent were fabricated and offended Sections 106A and 106B of the Evidence Act, Cap 80 Laws of Kenya and therefore vitiated the arbitration proceedings. The Applicant therefore contended that the award contravenes Section 35(2)(b)(ii) of the Arbitration Act and Article 201 of the Constitution. C. The Interested Parties’ submissions on the notice of motion dated 3rd February, 2025. 29. In their filed submissions, the Interested Parties supported the Applicant’s application seeking to set aside the arbitral award. The Interested Parties submitted that they had a legitimate interest in the instant proceedings as the Applicant is a public entity and that there was a likelihood that public funds would be lost and the Respondent unjustly enriched. 13 | P a g e

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30. The first ground that the Interested Parties proffered was that the arbitral award violates public policy, particularly with regard to what they alleged was misuse of public funds and violation of constitutional principles of accountability. In their view, the court was mandated under Section 35(2)(b)(ii) of the Arbitration Act to set aside the award as it conflicted public policy in that public funds were at the risk of being misused or lost, noting that Article 201 of the Constitution dictates that public funds be utilized efficiently, transparently and in a manner that promotes accountability. 31. The second ground presented by the Interested Parties was that the Arbitrator exceeded his jurisdiction by not only making a determination on constitutional matters, but also that such matters fell outside the scope of the arbitration. In that respect, the submissions of the Interested Parties mirrored those of the Applicant. 32. The third ground that the Interested Parties urged in support of the Applicant’s application was that the Arbitrator exhibited bias or conflict of interest in conducting the arbitration proceedings. The submission on this point were that the Arbitrator failed to disclose his membership to the Respondent, which raised concerns of conflict of interest and bias, thereby undermining the fairness of the arbitration proceedings. 14 | P a g e

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D.The Respondent’s submissions on the notice of motion dated 3rd February, 2025. 33. In opposing the Applicant’s application, the Respondent first addressed the challenge by the Applicant seeking that the Respondent’s replying affidavit be expunged on account of having been filed outside the timelines that were issued by the court. In its view, the request, which was presented by way of a preliminary objection, was not available to the Applicant by virtue of Article 159(2)(d) of the Constitution, as the same amounted to a procedural technicality which did not affect the substance of the litigation. 34. With regard to the Applicant’s point that there was apparent or perceived bias and a conflict of interest on the part of the Arbitrator, which was supported by the Interested Parties, the Respondent reiterated the position that it had presented evidence to demonstrate that the Arbitrator was not its member at the time of the arbitration and that he disclosed to the parties that he had therebefore been a member, yet the Applicant did not contest his appearance as the umpire in the arbitration proceedings. 35. Further, the Respondent submitted that Sections 13(3) and 14 of the Arbitration Act provided elaborate mechanisms of challenging the Arbitrator on account of bias and that the Applicant did not employ the mechanisms provided under the 15 | P a g e

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provisions of the Act, effectively waiving its rights, if any, to address the issue under Section 5 of the Act. 36. The Respondent addressed in its submissions the allegation by the Applicant that some evidence that was presented before the Arbitrator was fabricated by stating that the forensic report by Julkin Technologies Limited did not derive any conclusive determination on the authenticity of the documents that the Respondent produced vis a vis compliance with the rules of evidence and that as such, no such tampering was proved. 37. On the ground of allegation of violation of public policy, the Respondent submitted that neither the Applicant nor the Interested Parties presented any proof that public funds would be unlawfully lost or that the Respondent stood to be unjustly enriched. The Respondent urged that the Applicant was bound by the easement agreement and the arbitration clause under the said agreement, pursuant to Section 41 of the Arbitration Act. 38. The submission of the Respondent on the issue raised by the Applicant and supported by the Interested Parties that the award was ultra vires the provisions of the Constitution was that the mandate of the Arbitrator was drawn from the easement agreement and the law and that the Arbitrator therefore acted within his mandate in granting the reliefs. 16 | P a g e

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39. The Respondent urged that although the claim for damages for constitutional violations were not specifically sought in the statement of claim, the reference to “any other relief that this Honourable Tribunal may deem just and expedient” aptly covered the quest for all the reliefs that the Arbitrator ultimately granted, more specifically under Rule 89 of the Arbitration Rules. The Respondent thus submitted that under Section 10 of the Arbitration Act, this court should not interfere with the findings of the Arbitrator. E. Issues for determination. 40. Having outlined the factual and procedural history of this matter, I will deduce the issues that I am now tasked to determine, which are: i. Whether the Respondent’s replying affidavit was filed outside the timelines granted by the court, and if so, whether the same should be struck out or expunged from the record. ii. Whether the Arbitrator exceeded his mandate and jurisdiction by determining and awarding reliefs founded on alleged contrary to the Arbitration Constitution. 17 | P a g e Act constitutional arbitration and Article violations, agreement, the 165(3) the of

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iii. Whether the arbitral award offends the public policy of Kenya within the meaning of Section 35(2)(b)(ii) of the Arbitration Act, including the allegations of unjust enrichment and misuse or loss of public funds. iv. Whether the Arbitrator acted with actual, apparent or perceived bias or was conflicted, and whether such bias vitiates the arbitral proceedings and the final award. v. Whether the arbitral proceedings were conducted in breach of the rules of natural justice, including whether the Arbitrator disregarded evidence or relied evidence on material that was inadmissible, fabricated or improperly admitted. vi. Whether the Applicant waived its right to challenge the Arbitrator on grounds of bias or jurisdiction by failing to invoke the mechanisms provided under Sections 5, 13 and 14 of the Arbitration Act. vii. Whether the grounds advanced by the Applicant and supported by the Interested Parties satisfy the threshold for setting aside an arbitral award under Section 35(2)(a) and (b) of the Arbitration Act. 18 | P a g e

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viii. What orders should be made on the notice of motion dated 3rd February, 2025, including orders as to costs and consequently, what orders should be made on the chamber summons dated 24th January, 2025.. F. Analysis and findings. 41. The first issue for determination is whether the Respondent’s replying affidavit was filed outside the timelines granted by the court, and if so, whether the same should be struck out or expunged from the record. 42. The Applicant challenged the Respondent’s replying affidavit on the ground that it was filed outside the timelines granted by the court and urged that the same be struck out or expunged from the record. According to the Applicant, the late filing amounted to non-compliance with court orders and undermined the integrity of the judicial process and that the only fate that should befall the affidavit is its expungement. 43. In response, the Respondent conceded that the replying affidavit may not have been filed strictly within the timelines directed by the court but submitted that the delay in filing the same did not occasion any prejudice to the Applicant and was a procedural lapse curable under Article 159(2)(d) of the Constitution. The Respondent further contended that the Applicant was in any event afforded an opportunity to respond to the contents of the affidavit through written submissions. 19 | P a g e

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44. This court has considered the record and the rival arguments on that issue. It is evident that there was noncompliance with the court’s directions as regards the timelines for filing the replying affidavit. Such non-compliance is not to be trivialized, as court orders are binding and adherence to timelines is critical to the orderly administration of justice. Failure to comply with court directions does, in that sense, undermine the judicial process. 45. However, the mere fact of late filing does not automatically render a pleading or affidavit liable to be struck out. The court must go further and interrogate whether the non-compliance goes to the substance of the dispute, whether it occasioned prejudice to the opposing party and whether striking out would serve the interests of justice. 46. Of particular relevance to the present proceedings is the nature of the substantive application before the court. The primary question is whether the arbitral award should be set aside under Section 35 of the Arbitration Act. 47. Non-compliance with court-imposed timelines for filing a response, while undesirable, is not among the grounds provided under Section 35 for setting aside an arbitral award. Consequently, such procedural default, standing alone, cannot found a basis for impeaching the validity of the arbitral award 20 | P a g e

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or excluding material placed before the court in response to the setting-aside application. 48. This court is also guided by Article 159(2)(d) of the Constitution, which enjoins courts to administer justice without undue regard to procedural technicalities. In the case of Kenya Ports Authority v Kenya Power & Lighting Co. Limited [2012] eKLR, the court, while addressing the scope of Article 159, observed that: “Combining the meaning of these words ‘procedural technicalities’ may be described as those that more concern the mode of proceedings and the rules involved that regulate formalities rather than substantive rights under law.” 49. Applying that principle to the present case, the late filing of the replying affidavit relates to the mode and timing of proceedings rather than to the substantive rights of the parties. The Applicant did not demonstrate that it suffered any prejudice that could not be remedied, nor did it show that its right to a fair hearing under Article 50 of the Constitution was compromised. The record shows that the Applicant was able to fully canvass its case and respond to the Respondent’s arguments. 50. While the court deprecates non-compliance with its orders and reiterates that parties must always adhere strictly to 21 | P a g e

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timelines, the circumstances of this case do not justify the draconian step of striking out or expunging the replying affidavit. To do so would be to elevate form over substance and potentially impede the just determination of the substantive dispute before the court. 51. The determination that I then reach on this issue is that I find that although the Respondent filed its replying affidavit outside the timelines granted by this court, such noncompliance amounts to a procedural irregularity. It does not constitute a ground for setting aside an arbitral award under Section 35 of the Arbitration Act, nor does it warrant the striking out or expunging of the affidavit from the record. The replying affidavit shall therefore remain on record and be considered in the determination of the substantive application. 52. The second issue for me to address is whether the Arbitrator exceeded determining and constitutional his mandate awarding violations, reliefs contrary and jurisdiction by founded on to arbitration the alleged agreement, the Arbitration Act and Article 165(3) of the Constitution. 53. This issue engages fundamental questions about the proper scope of arbitral jurisdiction, the relationship between private dispute resolution and constitutional adjudication and the 22 | P a g e

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limits of judicial supervision of arbitral awards under Kenyan law. 54. The Applicant and the Interested Parties both contended that the Arbitrator exceeded his mandate by making a substantive determination that the Respondent’s constitutional rights were violated and by awarding Kshs.100,000,000/– as “general damages for constitutional infringement,” in circumstances where no constitutional causes of action were pleaded or referred to arbitration. They further argued that such a finding and award fell outside the contractual dispute submitted for arbitration and intruded into the exclusive constitutional jurisdiction of the High Court. 55. The Respondent argued that the Arbitrator merely applied constitutional principles in considering the contract dispute and that general relief sought in the statement of claim sufficiently empowered him to make the award. 56. In determining this issue, this court must consider the relevant statutory provisions of the Arbitration Act, the constitutional Constitution mandate and under applicable Article 165(3) jurisprudence of the including the Supreme Court’s interpretation of the scope of judicial intervention in arbitration. 23 | P a g e

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57. The first and most fundamental principle is that constitutional claims for infringement of fundamental rights invoke the enforcement of the Bill of Rights, a core part of the constitutional order. 58. Under Article 165(3)(a) of the Constitution, the High Court has original jurisdiction in all civil matters and, critically, the jurisdiction to interpret the Constitution and determine whether any law, act or omission is inconsistent with, or in contravention of, the Constitution. This jurisdiction includes the power to grant appropriate remedies for breaches of constitutional rights such as declarations, injunctions and damages, as provided under Article 23(3) and Article 24 of the Constitution. 59. Even in instances where parties have agreed to resolve their disputes through arbitration, such an agreement cannot oust or displace the High Court’s constitutional jurisdiction to grant relief for violation of fundamental rights. The authority to hear and determine constitutional questions is not derivative. It stems from the Constitution itself. 60. An arbitrator’s mandate is drawn from the arbitration agreement and the submission to arbitration. It is not co-extensive with the constitutional jurisdiction of superior courts. Thus, any purported award of constitutional damages by an arbitrator necessarily raises the question whether he or 24 | P a g e

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she has assumed powers that are not conferred by the arbitration agreement or by law. 61. The statutory framework governing arbitration in Kenya, particularly Section 35(2)(a)(iv) of the Arbitration Act, circumscribes the jurisdiction of an arbitral tribunal and the grounds upon which an arbitral award may be set aside by the High Court. 62. Section 35(2)(a)(iv) provides that an arbitral award may be set aside if “…the arbitral award deals with a dispute not contemplated by or not falling within the terms of the reference to arbitration or contains decisions on matters beyond the scope of the reference to arbitration…”. 63. This provision reflects the principle that arbitral jurisdiction is derivative of the parties’ agreement and that an Arbitrator cannot decide matters that were not submitted to him. An arbitral tribunal that ventures beyond the scope of the reference is said to have acted in excess of jurisdiction, and its award on such matters may be impugned under Section 35. 64. From the pleadings in this case, the dispute referred to arbitration was contractual in nature with respect to alleged breaches of the easement agreement. The reliefs claimed were for breach of contract, special and general damages flowing from that breach and related contractual consequences. No 25 | P a g e

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constitutional causes of action were pleaded. Therefore, the Arbitrator, by making a determination that the contract dispute involved constitutional violations and basing a substantial award on that determination, necessarily moved beyond the issues the parties agreed to submit. 65. The Arbitrator’s award of Kshs.100,000,000/– as general damages for constitutional infringement was a substantive determination that the Respondent’s constitutional rights had been violated. The Arbitrator expressly grounded this head of relief in constitutional provisions, including rights under Articles of the Constitution that speak to environmental and consumer rights. 66. This finding was not a mere incidental reference to constitutional values. It was a substantive adjudication of constitutional rights. The tribunal engaged in constitutional adjudication, particularly where constitutional rights and remedies were not pleaded and assumed jurisdiction beyond what the parties submitted. 67. Such a determination cannot be justified by an omnibus prayer for “any other relief that this Honourable Tribunal may deem just and expedient,” because an arbitrator’s jurisdiction does not derive from prayers for relief but from the arbitration agreement and the actual issues referred. 26 | P a g e

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68. In the case of Nyutu Agrovet Limited v Airtel Networks Kenya Limited; Chartered Institute of Arbitrators Kenya Branch (Interested Party) [2019] eKLR, the Supreme Court emphasized the limited scope of court intervention under Section 35 and that alleged breaches of the Constitution cannot be introduced outside the statutory grounds provided. The Court observed: “Alleged breaches of the Constitution cannot be properly introduced by way of an application to set aside an arbitral award… Breaches of the Constitution are properly governed by Articles 165(3) and 258 of the Constitution and cannot by litigational ingenuity be introduced…” 69. Although the context of Nyutu was appellate jurisdiction, the principle reinforces that arbitral jurisdiction cannot be expanded to include constitutional adjudication merely because constitutional provisions are referenced or because a broad prayer is made. 70. Beyond jurisdictional overreach, the award of constitutional damages by the Arbitrator also raises serious questions of public policy. Public policy in arbitration is a broad concept that encompasses the Constitution and the statutory framework within which arbitration must operate. 71. In Christ for All Nations v Apollo Insurance Co. Ltd [2002] 2 EA 366, this Court (Ringera J, as he then was) 27 | P a g e

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articulated the test for when an award is contrary to public policy, holding that an award could be set aside if it was inconsistent with the Constitution or any other written law or if it was injurious to the interests of the state or any sector of the public. 72. An Arbitrator’s assumption of jurisdiction that is contrary to the constitutional allocation of judicial power, such as determining and awarding constitutional remedies, is prima facie inconsistent with the Constitution and therefore offends public policy. If arbitral tribunals were to be permitted to award constitutional remedies, the constitutional scheme that assigns authority over constitutional interpretation and remedies to superior courts would be undermined. That is the very essence of the public policy concern this court must guard against. 73. It is important, however, to emphasise the caution expressed in Christ for All Nations that not every error of law would amount to a public policy violation. A misdirection on the substantive merits of a contract claim, for example, would not ordinarily engage public policy. However, where an arbitral tribunal arrogates itself jurisdiction that it does not possess, such transcends as mere constitutional error and goes fundamental validity of the award. 28 | P a g e adjudication, to the the defect legality and

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74. In addressing this issue, this court is not called upon to re-evaluate the evidence or to substitute its own views on the merits of the contract dispute. Rather, the task is to ensure that arbitration operates within the framework set by statute and the Constitution. This is a core aspect of the High Court’s supervisory jurisdiction under Section 35 of the Arbitration Act. The Court’s function in this context is not to retry the case but to enforce the boundaries of arbitral jurisdiction and to safeguard the constitutional allocation of judicial power. 75. In the case of Airtel Networks Kenya Limited v Nyutu Agrovet Limited (the Nyutu Agrovet case when before the High Court), the court acknowledged this limited role of judicial intervention that courts may intervene on specific statutory grounds and not as appellate courts on the merits of an arbitral decision. 76. The third issue for determination is whether the arbitral award offends the public policy of Kenya within the meaning of Section 35(2)(b)(ii) of the Arbitration Act, including the allegations of unjust enrichment and misuse or loss of public funds. 77. The Arbitration Act establishes a limited and clearly defined role for the High Court in supervising arbitral awards. Among the grounds upon which an arbitral award may be set aside is 29 | P a g e

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where the award is “in conflict with the public policy of Kenya” under Section 35(2)(b)(ii). 78. The statutory language itself, however, does not explain what constitutes “public policy.” To give meaning to that phrase, courts have developed a body of jurisprudence that delineates the scope and content of public policy in the arbitration context. The authoritative articulation of this scope is found in Christ for All Nations (supra) where Ringera J. provided a definition that: “Public policy is a broad concept incapable of precise definition. An award can be set aside under Section 35(2) (b)(ii) of the Arbitration Act as being inconsistent with the public policy of Kenya if it is shown that it was either (a) inconsistent with the Constitution or any other law of Kenya whether written or unwritten, or (b) inimical to the national interest of Kenya, or (c) contrary to justice and morality.” 79. This tripartite test (constitutional or legal inconsistency, inimicality to national interest and conflict with justice and morality) remains the touchstone for determining public policy challenges in arbitration proceedings. It reflects a balance between safeguarding the fundamental legal and moral order of society and upholding the principle of finality in arbitration. 30 | P a g e

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80. Importantly, in the same judgment the court emphasized that public policy must not be invoked to erode the finality of arbitral awards. The court stated: “The public policy in Kenya leans towards finality of arbitral awards and parties to an arbitration must learn to accept an award, warts and all, subject only to the right of challenge within the narrow confines of Section 35 of the Arbitration Act.” 81. The court articulated the principle that arbitration is a preferred dispute resolution mechanism because it offers finality, efficiency and certainty. Judicial intervention is not intended to supplant the Arbitrator’s role or to provide an appellate forum. Rather, the courts are empowered to correct only fundamental departures from legal positions recognized in statute and constitutional order. 82. The narrow compass of Section 35 was reinforced by the Court of Appeal in the case of Anne Mumbi Hinga v Victoria Njoki Gathara [2009] eKLR, where the court observed that: “Section 35 of the Arbitration Act limits the intervention of the High Court in arbitral awards to the grounds set out therein and the court has no jurisdiction to entertain an appeal or review of the merits of the arbitrator’s decision.” 31 | P a g e

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83. The Court of Appeal was clear that Section 35 does not create a general right of appeal or review. Public policy is one of the limited gateways to judicial interference and it must therefore be construed and applied with restraint. 84. Following Christ for All Nations and Anne Mumbi Hinga, mere grievances or disagreement with the outcome of an arbitral award, however substantial in monetary terms, do not suffice to establish a public policy violation. Rather, departure from the law and legal norms must be established to warrant the invocation of public policy violation in an application for setting aside an arbitral award. 85. In the case of Capture Solutions Limited v Nairobi City Water and Sewerage Company Limited [2020] eKLR, the High Court restated the foundational principles, holding that: “…for an arbitral award to be contrary to public policy there must be some fundamental departure from the law and legal norms.” 86. That case involved a challenge to enforcement on public policy grounds, and the court reiterated that an award cannot be deemed contrary to public policy simply because a party is unhappy with the arbitrator’s reasoning or conclusions. The court proceeded to hold that there must be an identifiable conflict with statutory or constitutional principles, or a result that is inimical to national interests or justice. 32 | P a g e

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87. In the case of Open Joint Stock Company Zarubezhstroy Technology v Gibb Africa Limited [2017] eKLR, the High Court emphasized that: “…a party seeking to rely on public policy to resist recognition of an award must show a well-settled and clear public policy in order to succeed.” 88. Further, in Kenya Shell Limited v Kobil Petroleum Limited [2006] eKLR, the Court of Appeal applied the Christ for All Nations test in a practical context and upheld a public policy challenge to an arbitral award that was found to be detrimental to the public good. The court reiterated the threefold test and applied it in circumstances where the award conflicted with regulatory or statutory obligations with broader implications for public welfare. 89. Notably, there is a distinction between public policy challenges and merits review. The ground of public policy is not a device for correcting perceived errors in factual findings or contractual interpretation by an Arbitrator. As held in Anne Mumbi Hinga, this court has no jurisdiction to entertain an appeal or review of the merits of the arbitrator’s decision. In Capture Solutions, the court reiterated that for an award to be regarded as contrary to public policy, there must be a fundamental departure from legal norms, not merely a 33 | P a g e

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difference of opinion regarding valuation or assessment of evidence. 90. This principle is apt in the present case because, while the Applicant may disagree with the amounts or the flow of the award, disagreement alone does not suffice. The challenge must demonstrate that enforcement of the award offends the constitutional or legal framework of Kenya in a manner specified by the Christ for All Nations test. 91. The Applicant and the Interested Parties asserted that the arbitral award offends public policy on multiple grounds, including alleged unjust enrichment of the Respondent and the potential misuse or loss of public funds and that enforcement could be inimical to the national interest. 92. Examining these contentions against the Christ for All Nations framework, unjust enrichment in its classical sense is a private law concept that arises where one party benefits at another’s expense in circumstances the law regards as unjust. However, the mere fact that one party receives a large award does not, on its own, make the award contrary to public policy. In order to elevate unjust enrichment to a public policy issue, the Applicant must show that the award’s content was fundamentally inconsistent with legal or constitutional norms that underpin the administration of justice or the use of public resources. If the award were to direct a public authority to pay 34 | P a g e

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sums for which there is no legal basis, especially in circumstances where that payment would contravene statutory obligations, the national interest limb of the Christ for All Nations would be engaged. 93. However, in the absence of evidence that enforcement of the award contravened the law or constitutional principles, the public policy threshold was not reached simply because the Applicant and the Interested Parties perceived the award to be unjust or financially burdensome. As the High Court observed in Capture Solutions, an award cannot be set aside on public policy grounds merely because it is perceived as unfair or because it confers a monetary benefit one party deems unreasonable. 94. There must be evidence of conflict with statutory duties, constitutional mandates or entrenched legal principles. Allegations that enforcement of the award would result in significant expenditure of public funds are not sufficient in themselves to ground a public policy challenge unless there is evidence that the award would compel actions inconsistent with constitutional or statutory provisions on public finance. 95. In approaching the public policy challenge, this court is mindful of the caution in Christ for All Nations regarding finality of arbitral awards and the limited scope of judicial intervention permitted under Section 35. The Court of Appeal 35 | P a g e

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in Anne Mumbi Hinga emphasized that the High Court cannot entertain an appeal or merits review of an arbitrator’s decision. Rather, this court’s role under Section 35 is to determine whether one of the enumerated statutory grounds is established. 96. Even when considering public policy, this court must therefore resist the temptation to evaluate the merits or fairness of the award. The focus must remain on the quality of the departure from legal norms and whether that departure is sufficiently grave to offend public policy as defined in Christ for All Nations. 97. In this context, while the award’s monetary components (e.g., special damages or maintenance costs) might be large and arguably burdensome, that alone does not constitute public policy violation unless coupled with legal inconsistency. By contrast, the portion of the award that intrudes into constitutional adjudication, something an arbitrator was never empowered to undertake, is a clear departure from both the statutory and constitutional frameworks and cannot stand. 98. In conclusion, the determination that the court reaches regarding whether the arbitral award offended public policy under Section 35(2)(b)(ii) of the Arbitration Act is that the component of the award that granted constitutional damages having been found to exceed the Arbitrator’s jurisdiction and 36 | P a g e

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having intruded on the constitutional mandate of the High Court, offended public policy under Section 35(2)(b)(ii) and is accordingly liable to be set aside on that ground. 99. I will address the remaining portions of the award that do not engage public policy later on in this judgement. 100. I will address the fourth and sixth issues together. The fourth issue for determination is whether the arbitrator acted with actual, apparent or perceived bias or was conflicted, and whether such alleged bias and conflict vitiated the arbitral proceedings and the final award, and the sixth issue is whether the Applicant waived its right to challenge the Arbitrator on grounds of bias or jurisdiction by failing to invoke Sections 5, 13 and 14 of the Act. 101. It is a fundamental principle in arbitration and adjudication generally that an arbitrator must act with absolute impartiality and independence. 102. An arbitrator who is biased, or who is reasonably perceived to be biased, undermines the integrity of the arbitral process because bias impairs a party’s ability to fully and fairly present its case and threatens the equality of arms, which is a core tenet of natural justice and procedural fairness. Even the perception of bias may be sufficient to vitiate an arbitral 37 | P a g e

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award, because public confidence in the fairness of dispute resolution is paramount. 103. In this respect, allegations of bias can also, in my view, be assessed under Section 35(2)(b)(ii) of the Arbitration Act, which empowers a court to set aside an award if it is “in conflict with the public policy of Kenya.” Impartiality is thus not merely a procedural requirement but a foundational component of justice as an award rendered by a biased decision-maker would offend the most basic notions of justice and morality underpinning Kenya’s public policy. 104. While bias is a valid ground for challenge, allegations must not be used as a backdoor to re-examine the merits of the dispute. The law distinguishes between legitimate concerns over procedural fairness and an attempt to relitigate the substance of the Arbitrator’s decision. 105. The court’s role is supervisory, to ensure that the statutory and constitutional boundaries of arbitration are respected and not to act as an appellate body to second-guess the Arbitrator’s findings. Accordingly, this court must carefully scrutinise claims of bias to ensure that they are substantiated and objectively opportunistic. 38 | P a g e reasonable, rather than speculative or

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106. The Supreme Court of Kenya, in the case of Kaplana H. Rawal v Judicial Service Commission & 2 others [2016] eKLR, articulated the test for apparent or perceived bias. The court stated as follows: “The test is whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the decision-maker was biased.” 107. This objective test does not require proof of actual bias. Rather, it focuses on whether there is a reasonable perception of bias, informed by established facts. 108. Although Kaplana Rawal arose in the context of judicial appointments, the principle is applicable to courts, tribunals and other adjudicative bodies, which exercise judicial or quasijudicial authority and are bound by the same obligations of independence and impartiality. 109. In applying this test, this court must consider the nature, proximity and significance of the alleged relationship or interest giving rise to the perception of bias. Membership in a private social or professional association, for example, is not in itself determinative. What matters is whether, in the context of the proceedings, such a relationship could reasonably lead an informed observer to conclude that the Arbitrator might favour one party over another. The inquiry is necessarily fact- 39 | P a g e

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specific and must be grounded in evidence demonstrating a tangible connection or influence. 110. Equally important is the need to assess whether the alleged relationship or interest translated into any discernible procedural or substantive unfairness during the proceedings. While actual bias need not appear on the face of the award, evidence that considered the the arbitrator evidence treated carefully, parties allowed equally, for the presentation of arguments and provided reasoned decisions can demonstrate that the arbitrator acted impartially. 111. Bias must therefore be demonstrated and cannot be presumed. Mere suspicion, conjecture or the existence of a tenuous association is insufficient to invalidate an arbitral award. The Applicant bears the burden of providing cogent material from which a reasonable apprehension of bias can be objectively inferred. To hold that mere social or professional association automatically disqualifies an Arbitrator would be to expose awards to endless collateral challenges and undermine confidence in the arbitral process, contrary to public policy. 112. As was established in Christ for All Nations and Anne Mumbi Hinga the court’s intervention under Section 35 should remain narrowly confined to the statutory grounds. Challenges must not become a vehicle to re-open the merits of 40 | P a g e

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the dispute or to substitute the court’s own evaluation of evidence for that of the Arbitrator. 113. In the instant matter, the Applicant alleged that the Arbitrator’s membership in the Respondent’s private members’ club, the Nyanza Club, created a real possibility of bias. On a thorough review of the record, I make the following observations: i. The Arbitrator had disclosed his past membership to the parties prior to his appointment and the Applicant did not contest his participation, which disclosure aligned with the principles of transparency and full disclosure under Sections 13 and 14 of the Arbitration Act. ii. There is no evidence that was provided by the Applicant that the Arbitrator allowed this prior affiliation to influence the proceedings or his ultimate determination. iii. There is no evidence of procedural irregularity that was provided by the Applicant to suggest that the Arbitrator favoured one party over another. 114. Applying the Kaplana Rawal objective test, a fair-minded and informed observer, would not conclude that there was a 41 | P a g e

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real possibility of bias. The facts simply do not support the contention that the Arbitrator acted in a manner that compromised impartiality or fairness, courtesy of his erstwhile association with the Respondent. 115. Furthermore, consistent with the caution in Christ for All Nations and Anne Mumbi Hinga, this court must ensure that allegations of bias are not used as a pretext for disputing the merits of the award. The record demonstrates that the Arbitrator exercised independent judgment and evaluated the evidence. The Applicant therefore failed to discharge the burden of establishing that the perceived relationship with the Respondent could reasonably be seen as creating a real possibility of bias. 116. In light of the above, this court finds that the allegations of bias were unsupported by any material evidence and are therefore rejected. The ground of bias, therefore, does not warrant setting aside the arbitral award under Section 35(2) (a)(iii) or Section 35(2)(b)(ii). 117. Moreover, the Act establishes a clear and mandatory procedure for challenging an arbitrator on grounds of bias. Under Sections 13(3) and 14, a party who becomes aware of circumstances giving rise to doubts as to an arbitrator’s impartiality must raise a written challenge within the prescribed period, failing which the arbitral proceedings 42 | P a g e

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continue. Critically, Section 14(2) provides that the challenge must be made within 15 days from the date the party became aware of the facts giving rise to the challenge. 118. Section 5 of the Act expressly provides that a party who proceeds with the arbitration without raising an objection timeously is deemed to have waived the right to object. In Narok County Government v Equity Bank Limited [2025] KEHC 11873, the court held that a party who fails to invoke the challenge mechanism provided under the Act cannot later rely on alleged procedural improprieties as a basis for setting aside an award. 119. The same position was affirmed by the Court of Appeal in Kampala International University v Housing Finance Company Limited (Petition 34 (E035) of 2022) [2024] KESC 11 (KLR), where it was held that allegations of bias raised for the first time at the enforcement or setting aside stage are untenable where the party had knowledge of the relevant facts during the arbitration but failed to act under Sections 13 and 14. 120. In the circumstances, as the Applicant participated in the arbitration with full knowledge of the facts now relied upon and did not invoke the statutory challenge procedure, the Applicant must be deemed, by operation of Section 5 of the 43 | P a g e

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Act, to have waived the right to challenge the Arbitrator on grounds of bias. 121. The fifth issue for me to address is whether the arbitral proceedings were conducted in breach of the rules of natural justice, including whether the Arbitrator disregarded material evidence or relied on evidence that was inadmissible, fabricated or improperly admitted. 122. The starting point in addressing whether the arbitral proceedings were conducted in breach of the rules of natural justice is the recognition that arbitration is a consensual dispute resolution mechanism in which parties deliberately opt for finality, efficiency and minimal court interference. 123. Section 19 of the Arbitration Act mandates that parties be treated equally and that each party be given a full opportunity of presenting its case. However, not every alleged procedural impropriety or dissatisfaction with the manner in which evidence is handled amounts to a breach of natural justice. As was emphatically stated by the Court of Appeal in Kenya Shell Limited v Kobil Petroleum Limited [2006] eKLR, “an arbitrator is the master of the facts and the law within the four corners of the reference”, and courts must resist the temptation to micro-manage arbitral proceedings under the guise of enforcing fairness. 44 | P a g e

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124. The Applicant’s principal complaint under this issue is that the Arbitrator allegedly disregarded material evidence and relied on evidence that was inadmissible, fabricated or improperly admitted, particularly with reference to the forensic report and the impugned documentary exhibits. 125. Upon careful consideration of the arbitral record, it is evident that the Applicant was afforded ample opportunity to present its evidence, to cross-examine witnesses and to raise objections to the Respondent’s documents. The mere fact that the Arbitrator ultimately found the Respondent’s evidence more persuasive does not translate into a denial of the Applicant’s right to be heard. 126. In Christ for All Nations the Court of Appeal cautioned that: “…..the court is not entitled to reconsider the merits of the award or to substitute its own view for that of the arbitrator, however wrong it may think the arbitrator to be.” 127. On the allegation that the Arbitrator relied on fabricated or inadmissible evidence contrary to Sections 106A and 106B of the Evidence Act, it bears emphasis that arbitration proceedings are not strictly bound by the technical rules of evidence applicable in ordinary court proceedings, unless the parties expressly agree otherwise. 45 | P a g e

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128. Section 20(3) of the Arbitration Act grants the arbitral tribunal discretion to determine the admissibility, relevance, materiality and weight of any evidence. In Epco Builders Limited v Adam S. Marjan [2014] eKLR, the High Court held that: “…an arbitrator is entitled to decide what evidence to admit and what weight to attach to it, and such decisions cannot be re-opened by the court unless they occasion real unfairness.” 129. No such unfairness has been demonstrated in the present case. 130. Crucially, the forensic report relied upon by the Applicant did not conclusively establish fabrication of documents. At best, it raised questions which were placed before the Arbitrator and were addressed within the award. The Arbitrator’s decision to accept or reject that report, and to weigh it against other evidence on record, fell squarely within his adjudicative mandate. The court cannot re-evaluate the probative value of competing pieces of evidence without impermissibly descending into an appeal on the merits. As the Court of Appeal observed in Nyutu Agrovet errors of fact or law, however grave, are not by themselves a ground for setting aside an arbitral award. 46 | P a g e

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131. The Applicant has also failed to demonstrate that any material evidence it placed before the Arbitrator was ignored or shut out. The record reflects that submissions were received, witnesses were heard and documentary evidence was admitted from both parties. A breach of natural justice arises not where evidence is rejected, but where a party is denied the opportunity to present or challenge evidence altogether. 132. In the final analysis on this issue, this court finds that the Applicant’s grievances amount to a challenge on the merits of the Arbitrator’s evidentiary evaluation rather than proof of a breach of the rules of natural justice. Accordingly, that ground fails. 133. The seventh issue for determination is whether the grounds advanced by the Applicant and supported by the Interested Parties satisfy the threshold for setting aside the arbitral award under Section 35(2)(a) and (b) of the Arbitration Act. 134. The legal framework governing the setting aside of arbitral awards in Kenya is encapsulated in Section 35 of the Act. 135. Under Section 35(2)(a), the High Court is empowered to set aside an award if it is satisfied that the arbitral tribunal has exceeded its mandate, failed to conduct proceedings in accordance with the agreement of the parties or applicable 47 | P a g e

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law or otherwise acted in a manner inconsistent with the rules of natural justice. 136. Section 35(2)(b) extends this jurisdiction to awards that are contrary to public policy, which encompasses awards that violate the Constitution, statutory law, or the national interest or that offend the principles of justice and morality. 137. Arbitral awards are entitled to a presumption of validity and courts must intervene only when a statutory threshold is clearly met, thereby balancing finality with the protection of justice and public interest. 138. The Applicant and Interested Parties advanced multiple grounds under Section 35(2)(a), asserting that the Arbitrator exceeded his mandate by awarding reliefs that were outside the scope of the arbitration agreement and the statutory framework, particularly general damages for alleged constitutional violations and that he failed to conduct the proceedings strictly in accordance with the rules of natural justice. 139. It is well established that parties cannot confer authority on an arbitral tribunal to adjudicate matters beyond the scope of their agreement. Claims alleging constitutional infringements necessarily implicate the enforcement of the Bill of Rights, and jurisdiction to grant relief in respect of such claims is vested 48 | P a g e

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solely in the High Court and other superior courts under Articles 22, 165(3)(a) and (d) and 159 of the Constitution. 140. In the present Ksh.100,000,000/- as matter, general the Arbitrator damages for awarded alleged constitutional violations. As we have seen above, this award was neither pleaded nor contemplated in the arbitration reference and fell entirely outside the scope of the parties’ agreement. Section 35(2)(a)(iv) explicitly provides a statutory basis for setting aside awards where the arbitral tribunal has exceeded its mandate. 141. In this regard, this court has already found that a portion of the arbitrator’s award i.e. the grant of general damages for constitutional infringements, was beyond the Arbitrator’s jurisdiction and inconsistent with the constitutional allocation of judicial authority and therefore against public policy. That finding is itself a ground for setting aside that portion of the award under the previous issue. 142. Where the unconstitutional relief is conceptually and textually separable from the rest of the award, Section 35(2) (a)(iv) of the Arbitration Act empowers this court to sever and set aside only the offending part, leaving the remainder intact. This approach recognises both the autonomy of arbitration and the need to correct only those aspects of an award that are ultra vires the Arbitrator’s authority. 49 | P a g e

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143. Conversely, where the unconstitutional relief is so integral to the tribunal’s reasoning that it cannot be disentangled without distorting the award as a whole, the court may find it necessary to set aside the award in its entirety. 144. In the present case, the constitutional damages, in my view, did not significantly influence or permeate the overall award. The offending part can therefore be severed without affecting the coherence or integrity of the balance of the award. 145. Having considered the submissions of the parties, the court finds that the Arbitrator exceeded his mandate under Section 35(2)(a)(iv) by awarding general damages for constitutional violations, a jurisdiction reserved for the High Court. This aspect of the award is accordingly set aside. The remaining portions of the arbitral award, however, are valid, enforceable, and do not offend public policy under Section 35(2)(b)(ii). 146. Accordingly, the Applicant’s application is allowed in part. The constitutional damages awarded by the Arbitrator are hereby set aside, while the balance of the arbitral award issued by the sole Arbitrator, Hon. John Olago Aluoch, CBS, on 23rd January 2025, remains intact and enforceable. G.Conclusion and orders. 147. Being of the foregoing findings, I proceed to make the following orders, which then addresses the eighth issue: 50 | P a g e

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a. The application dated 3rd February, 2025 is allowed only to the extent that the award of Ksh.100,000,000/- for constitutional infringement is hereby set aside. b. The Respondent’s application for recognition and enforcement of the valid portions of the award dated 24th January, 2025 retains full legal effect and is hereby allowed the same are recognized and enforced accordingly as the judgement of this court, in favour of the Applicant and against the Respondent in the following terms: i. Special damages for oil spillage – Ksh.5,750,000/-. ii. Special damages for maintenance of easement area – Ksh. 4,800,000/-. iii. Monthly maintenance from November, 2022 to date – Ksh.4,050,000/-. iv. Arbitrator’s fees – Ksh.400,000/-. v. Costs of travel and accommodation for Claimant’s Counsel – Ksh.100,000/-. vi. Total award – Ksh.15,100,000/-. vii. Interest on the above amount shall accrue at 10% per annum from 23rd January, 2025, as per the decision of the Arbitrator. 51 | P a g e

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148. On the issue of costs, the court is guided by the general principle that costs ordinarily follow the event, unless the court, for good reason, orders otherwise. While the Applicant initiated these proceedings through the notice of motion dated 3rd February 2025 and bore the primary burden of prosecuting the application, the outcome was not wholly in its favour. 149. Although the Applicant succeeded in part, the Respondent also succeeds in respect of the recognition and enforcement of the valid portions of the arbitral award. 150. In the circumstances, and having regard to the nature and complexity of the dispute, it is just and appropriate that each party shall bear its own costs, with no order as to costs in favor of either party. 151. With respect to the Interested Parties, the court finds no basis for an award of costs in their favour. The Interested Parties voluntarily sought joinder and elected to participate in the proceedings in support of the Applicant’s case. They neither originated the proceedings nor introduced any distinct or determinative issues that materially assisted the court beyond those already canvassed by the Applicant. 152. In line with established practice, and in order to avoid burdening the any party with costs arising from participation 52 | P a g e

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that was not strictly necessary for the determination of the dispute, the court directs that each Interested Party shall bear their own costs. 153. Orders accordingly. DELIVERED (virtually), DATED & SIGNED this 22nd day of January, 2026. JOE M. OMIDO JUDGE FOR THE APPLICANT: Mr. Mogusu. FOR THE RESPONDENT: Mr. Ogejo & Ms. Odipo. FOR THE INTERESTED PARTIES: Mr. Arum. COURT ASSISTANTS: Mr. Ngoge. Mr. Ogejo: We thank the court for the detailed judgement. We pray for typed proceedings. Mr. Mogusu: We are grateful for the determination by the court. I pray for 30 days stay. Mr. Ogejo: They can be given 15 days stay. Court: Proceedings to be typed and the parties to be supplied upon payment of court charges. Stay of execution is granted for 15 days. 53 | P a g e

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This file is hereby closed. JOE M. OMIDO JUDGE 54 | P a g e

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