Summary

1. A brief background to the appeal is that a dispute arose between the parties herein on the performance of the contract dated 1st July 2013 for drilling consultancy services. Parties submitted themselves to an arbitral process before a sole arbitrator, FCI Arb. Mr. Kyalo Mbobu, and an award was delivered on 12th November 2019. The arbitrator informed the parties that the award was ready, and on 13th March 2020 parties collected the copies thereof.

2. Both parties took opposing views on the award. Before the High Court, the respondent filed an application dated 3rd June 2020 for adoption of the award. The appellant on the other hand filed an application dated 12th June 2020 seeking to set aside the arbitral award in line with section 29 and 35 of the Arbitration Act. The respondent then opposed the appellant's application by filing a preliminary objection dated 23rd June 2020 on grounds that the application to set aside the award was time barred, and that it was brought three months after delivery of the award. In the impugned ruling dated 16th December 2020, the learned Judge of the High Court upheld the preliminary objection and allowed the respondent's application for enforcement of the award.

3. The appellant is dissatisfied with those findings. It filed its notice of appeal dated 28th December 2020. In its memorandum of appeal dated 22nd August 2024, the appellant raised ten grounds disputing the findings of the learned Judge. The appellant lamented that the learned Judge erred in law and in fact: by upholding the Preliminary Objection dated 23rd June 2020; in allowing the respondent's enforcement application dated 3rd June 2020 on the basis that nothing stood in the way of the enforcement of the arbitral award; in failing to consider whether the arbitral award complied with the requirements set out under section 36 and 37 of the Arbitration Act before adopting the same as a decree of the High Court; that the decision is contrary to the express provision of section 35(3) of the Arbitration Act which focuses on the concept of delivery rather than publication of the award; by holding that the delivery of the arbitral award to the parties' respective advocates does not constitute delivery within the meaning of the term under section 35(3) of the Arbitration Act; in relying on the English decision in the case of Bulk Transport Corporation -vs- Sissy Steamship Co. Ltd (The "Archipelagos")[1979] 2 Lloyds Law Reports pg. 289 that set the precedent on publication of an award, which should not have been followed by Kenyan Courts as it is based on pre-1996 English Arbitration Act; by computing the ninety (90) days limitation period under section 35(3) of the Arbitration Act from 12th November 2019 and not with effect from 6th April 2020; by finding that the respondent's application made under section 34 of the Arbitration Act was not relevant or applicable in the computation of time; by failing to apply section 34 while interpreting section 35(3) of the Arbitration Act and by failing to consider that the corrected award which it allowed enforcement of was corrected on account of the appellants application under section 34 of the Arbitration Act.

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42. Our conclusion is that the learned Judge did not err in striking it out for being filed out of time. We agree with her findings. Having properly found that the court was bereft of jurisdiction to entertain the application to set aside the award, the learned Judge could not consider the merits of the application. Nor can we accept the invitation to delve into the merits of the application to determine whether or not there were sufficient grounds to demonstrate that the award ought to have been set aside.

43. Ultimately, we find that the appeal is devoid of merit and dismiss it accordingly with costs to the respondent.

Dated and delivered at Nairobi this 28th day of November 2025.

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