Middle East Bank Kenya Limited v Kenindia Assurance Compnay Limited

Analysis and determination 5. I have considered the application, the response, the submissions and the respective positions of the parties. The question for determination is whether the application to set aside the arbitral award is time-barred. 6. Section 35(3) of the Arbitration Act provides that: An application for setting aside the arbitral award may not be made after 3 months have elapsed from the date on which the party making that application had received the arbitral award, or if a request had been made under section 34 from the date on which that request had been disposed of by the arbitral award. 7. In Ezra Odondi Opar v Insurance Company of East Africa Limited KSC CA Civil Appeal No. 98 of 2016 [2020] eKLR, the Court of Appeal reiterated that: “ (22) The requirement that an application for setting aside an arbitral award may not be made after 3 months from the date on which the award is received is consistent with the general principle of expedition and finality in arbitration. As the Supreme Court of Kenya recently noted in Nyutu Agrovet Limited v Airtel Networks Kenya Limited and another, SC Petition No. 12 of 2015 “the Arbitration Act, was introduced into our legal system to provide a quicker way of settling disputes” “in a manner that is expeditious, efficient…” while also observing that Section 35 of the Act, “also provides the time limit within which the application for setting aside should be made.” 8. An arbitral award is deemed to have been received by the parties once the arbitral tribunal notifies the parties that the award is ready for collection. 9. In Lantech (Africa) Limited v Geothermal Development Company ML HC Misc. Appl. No. E776 of 2020 [2020] eKLR the court observed as follows: “ (33) delivery happens when the arbitral tribunal either gives, yields possession, releases or makes available for collection a signed copy of the award to the parties. In this regard therefore, our courts have held that the actual receipt of the signed copy of the award by the party is not necessary and that the Award is deemed to have been received by the parties when the arbitral tribunal notifies parties that a signed copy of the award is ready for collection because it is on that date that the tribunal makes the signed copy available for collection by the parties.” 10. In the present case, the Applicant submits that on 20th October 2025 the arbitrator informed the parties of the publication of the award, which would be released upon payment of the fees. 11. On 10th November 2025, the arbitrator issued a letter informing the parties that “I refer to my letter dated 21st October 2025 and acknowledge receipt of my fees. The award can be collected from my office on 11th November 2025, from 10.00 am.” 12. Counsel for the Respondent therefore submits that from the foregoing it is clear that the notification communicating that the signed award was ready for collection was made on 10th November 2025 and https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12931/eng@2026-08-13 2

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thus time began to run on 11th November 2025 when the award was made available for collection. Counsel points out that by the letter of 20th October 2025 the award had not been published 13. I am unable to agree with that construction. The decisive consideration under section 35(3) is not the date upon which a party elects to collect the award, nor the terminology employed by the Arbitrator in describing its “publication”. The material question is whether the tribunal had completed the Award and communicated to the parties that it was available for release or collection. 14. The communication of 20th October 2025 conveyed that the award was ready for collection and would be released upon payment of the arbitrator's fees. Therefore, I conclude that the time period started from this date, and the Applicant/Respondent should have filed an application to set aside the award by or before 21st January 2026. I dismiss the argument that, according to the letter dated 20th October 2025, the publication was not ready and that if the parties had paid the fee demanded by the Arbitrator, the Award would have been released on the same day. I believe that the specific language used by the Arbitrator is not material, especially since the key issue here is the meaning of “delivery” under section 35(3) of the Arbitration Act, which difiers from “publish”. 15. The subsequent letter of 10th November 2025 merely acknowledged payment and provided the logistical arrangements for physical collection. It did not constitute a fresh delivery of the Award within the meaning of section 35(3). 16. The Bank advances the additional argument that the Award of 21st October 2025 was merely interim because the tribunal had reserved the issue of costs. I respectfully disagree with this position. Section 35(3) is clear and unqualified: the limitation period runs from the date on which the party "received the arbitral award." The statute does not distinguish between awards that include costs and those that do not. 17. I therefore find that the reservation of costs did not postpone the commencement of time. 18. It follows that the Chamber Summons dated 9th February 2026 is time-barred. 19. Accordingly, the Notice of Motion dated 13th April 2026 is merited. The Chamber Summons dated 9th February 2026 is hereby struck out. 20. The Respondent/Applicant will have the costs. It is so ordered. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 13TH DAY OF AUGUST 2026. PETER M. MULWA JUDGE In the presence of: Mr. Esmael for Applicant Mr. Lawson Ondieki & Mr. Mwendwa for Respondent Court Assistant: Sharon https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12931/eng@2026-08-13 3

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