Masongo & Another V Riruta Gardens [2025] KEHC 10371 (Klr)

Factual Background

The parties entered into a sale agreement dated 26^th September 2018. The agreement contained an arbitral clause that required any dispute between them to be determined by a sole Arbitrator appointed by the Chartered Institute of Arbitrators (Kenya). Inevitably, a dispute arose, was determined through arbitration and an arbitral award was issued on 11^th September 2024.

Consequently, the applicants filed an application via chamber summons on 26^th of September 2024 seeking adoption of the arbitral award. In response, the Respondent did not deny the existence of the arbitral award.

They, however, contended that even though nothing was stopping the court from adopting the award, the application for adoption was premature. According to the Respondent, the 90 days allowed for making applications for setting aside of arbitral awards had not expired.

Issues for determination

The issue for determination before the court was whether the arbitral award should be adopted.

Whether the arbitral award should be adopted.

The Respondent argued that the instant Application was premature as the 90-day (3-month) period allowed for filing an Application to set aside the award had not lapsed/expired as provided for under Section 35(3) of the Arbitration Act.

The court disagreed, holding that the Arbitration Act does not provide a timeline for making an application for adoption of an arbitral award. The three (3) months’ timeline is only applicable to the party that seeks to set aside the Arbitral Award. The respondent having not filed an application to set aside the award, nothing was stopping the court from recognising and enforcing the award.

Given that the case touched on the recognition and adoption of arbitral awards, we delve deeper into the process of adoption and recognition of such awards under the Kenyan Arbitration Act.

The process for recognition and adoption of arbitration awards:

According to section 36 of the Arbitration Act, for a domestic arbitral award to be recognised, the party seeking to enforce such an award has to make an application, in writing, for adoption to the High Court. An international arbitration award, on the other hand, is to be considered binding and enforceable in accordance with the provisions of the New York Convention or any other convention to which Kenya is signatory and relating to arbitral awards.

A domestic arbitration is one that is conducted in Kenya, while an international arbitration is one conducted in a foreign state.

The party relying on an arbitral award or applying for its enforcement must furnish the court with the following:

1. The original arbitral award or a duly certified copy of it;
2. The original arbitration agreement or a duly certified copy of it;
3. If the arbitral award was not made in English, the party seeking its adoption has to furnish the court with a duly certified translation of it into English language.

It is not guaranteed that once an application is made in accordance with section 36 of the Act, it will be automatically recognised and adopted as an order of the court. The court may refuse to enforce an arbitral award if the party against whom it is to be enforced proves to the court that:

1. The party to the arbitral agreement was under some incapacity; 
2. The arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication of that law, under the law of the state where the arbitral award was made;
3. The party against whom the arbitral award is invoked was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his or her case;
4. The arbitral award deals with a dispute not contemplated by or not falling within the terms of the reference to arbitration.
5. The arbitral award contained matters beyond the scope of the arbitral agreement.
6. The composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties or, failing any agreement by the parties, was not in accordance with the law of the state where the arbitration took place;
7. The arbitral award has not yet become binding on the parties or has been set aside or suspended by a court of the state in which, or under the law of which, that arbitral award was made;
8. The making of the arbitral award was induced or affected by fraud, bribery, corruption or undue influence.

Additionally, the High Court will not recognise an arbitral award if:

1. The subject matter of the dispute is not capable of settlement by arbitration under the law of Kenya. An example of a matter that cannot be arbitrated in Kenya is criminal matters.
2. The recognition or enforcement of the arbitral award would be contrary to the public policy of Kenya.

Conclusion

The process of recognition and adoption of an arbitral award is well stipulated in the Arbitration Act. Provided the application for adoption is duly made, the court will adopt the arbitral award unless the court has been successfully moved to set aside the award.

The grounds for setting aside an arbitral award are synonymous with the grounds for refusal to recognize an arbitral award discussed above. In the event that no application to set aside has been instituted, an application for endorsement can be made at any time after delivery of the arbitral award by the arbitration tribunal.