Wealthsmith Limited & another v Kithome & 11 others; Munyu (Interested Party) [2023] KEHC 20759 (KLR)

Wealthsmith Limited & another v Kithome & 11 others; Munyu (Interested Party) (Miscellaneous Application E065 of 2022) [2023] KEHC 20759 (KLR) (Commercial and Tax) (26 July 2023) (Ruling)

Neutral citation: [2023] KEHC 20759 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Miscellaneous Application E065 of 2022

DAS Majanja, J

July 26, 2023

Between

Wealthsmith Limited

1st Applicant

Barletta Holdings Limited

2nd Applicant

and

Casper Nzioka Kithome

1st Respondent

Beatrice Njambi Mahianyu

2nd Respondent

Benson Kinyua Ngure

3rd Respondent

Paul Kirunja Riungu

4th Respondent

Carol Nyawira Shikanga

5th Respondent

Daniel Kimani Ndiba

6th Respondent

Evangeline Richu

7th Respondent

Joyce Nandako Wanyonyi

8th Respondent

Meshack K Mwania & Claire Waithiki Kanyiri

9th Respondent

Michael Mbugua

10th Respondent

Rosewita Atieno Ochali

11th Respondent

Satish Champalal Rajput

12th Respondent

and

Martin Munyu

Interested Party

Ruling

1. The application before the court is the chamber summons dated May 24, 2023 filed by the respondents under section 36 of the Arbitration Act, 1995 seeking recognition and enforcement of the arbitral award published by the interested party (“the arbitrator”) on May 20, 2022 (“the award”). The application is supported by the 1st applicant’s affidavit sworn on the same date. It is opposed by the respondents through the grounds of opposition dated June 5, 2023.

2. Under section 32(A) of the Arbitration Act, an arbitral award is final and binding upon the parties and no recourse is available against the award otherwise than in the manner provided by the Arbitration Act. The High Court, under section 36 of the Arbitration Act, has the power to recognise and enforce domestic arbitral awards once the original arbitral award or a duly certified copy of it and the original arbitration agreement or a duly certified copy of it. Section 37 of the Arbitration Act sets out the grounds upon which this court can decline to recognize or to enforce an arbitral award which grounds mirror those in section 35 for setting aside an award.

3. The applicants’ application to set aside the award was dismissed on April 20, 2023 hence there is no impediment in allowing the respondents’ application particularly since the applicants have not raised any facts or issues that fall within the section 37 of the Arbitration Act and which would entitle this court to refuse to enforce the award.

4. In their grounds of opposition, the applicants raise two grounds against the award. First, that the court is functus officio and the matter closed. I reject the argument since it is the statutory right of the respondents to apply for recognition and enforcement of the award and the court can only refuse to recognise and enforce it if the grounds for refusal in section 37 of the Arbitration Act are proved. As I have stated, the applicants have not discharged that burden. Second, the applicants urge that the value of the subject matter falls with the pecuniary jurisdiction of the Magistrates Court. This argument lacks merit as the jurisdiction to enforce an arbitral award is specifically vested in the High Court by section 36(1) of the Arbitration Act.

5. For reasons I have set out, I allow the respondents’ application dated May 24, 2023 on terms that:a.The award dated May 20, 2022 be and is hereby recognized and entered as a judgment of this court and that leave be and is hereby granted to the respondents to enforce the award.b.The applicants shall bear the costs of the application assessed at Kshs 25,000. 00 only.

DATED AND DELIVERED AT NAIROBI THIS 26TH DAY OF JULY 2023. D. S. MAJANJAJUDGECourt Assistant: Mr M. Onyango.Mr Mbithi instructed by Mutuku Mbithi and Butoyi Advocates for the Applicants.Mr Gichuki instructed by Mulondo and Company Advocates LLP for the Respondents.