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ELCAllowedChamber Summons application dated 2nd September, 2020

Maurice Oduor Nyakone v Diamond Property Merchants Ltd [2021] KEELC 4198 (KLR)

Environment and Land Court
22 February 2021
COChristine Ochieng
851 words in judgment
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The bottom line

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What this practically means

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Executive summary

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By a Chamber Summons dated 2nd September 2020 under section 36(1) and (3) of the Arbitration Act, Rules 4 of the Arbitration Rules 1997 and Sections 1A, 3A and 59(c) of the Civil Procedure Act, the applicant Maurice Oduor Nyakone sought recognition, adoption and enforcement of an arbitral award dated 12th June 2020 and an award on costs dated 24th August 2020 as orders and a decree of the court. The dispute arose from an undated sale of land agreement over Plots 697 and 700 on title KJD/IL DAMAT/5555, arbitrated by D N Mbigi following nomination by the Chartered Institute of Arbitrators (Kenya). The Respondent, though duly served, neither entered appearance nor responded, leaving the application uncontroverted. Relying on section 32A of the Arbitration Act and the authorities of Tanzania National Roads Agency v Kudan Sigh Construction Limited and Adrian Manubeli Meja v Trident Insurance Co. Ltd, the court held that recognition and enforcement of arbitral awards is automatic where the section 37 grounds are absent, and that an unchallenged award cannot be interfered with but only adopted and enforced. Noting that the award on costs and the original arbitration agreement had been filed as envisaged by section 36(3) and Rule 4(1), Justice Christine Ochieng recognized, adopted and enforced the award and the award on costs, granted leave to enforce them as a decree, and allowed the application with costs on 22nd February 2021.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Applicant is entitled to the orders sought in the Chamber Summons application dated 2nd September, 2020

Key legal issues

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01

Whether an unchallenged arbitral award should be recognized, adopted and enforced as an order of the court

Holding

The court recognized, adopted and enforced the arbitral award and the award on costs, and granted leave to enforce them as a decree

Reasoning

Section 32A of the Arbitration Act renders an award final and binding with no recourse except as provided by the Act. The award on costs and the original arbitration agreement were filed as required by section 36(3) and Rule 4(1). The Respondent, though served, did not enter appearance or respond, so the averments were uncontroverted and no section 37 grounds existed to refuse enforcement.

p. 2

Legal principles established

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  • Recognition and enforcement of arbitral awards under section 36 of the Arbitration Act is automatic where the conditions for refusal under section 37 are not met
  • An unchallenged arbitral award is final and binding and the court is only expected to adopt and enforce it

Court orders

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  1. 1.The arbitral award dated 12th June, 2020 together with the award on costs dated 24th August, 2020 is recognized, adopted and enforced as an order of the Court
  2. 2.Leave granted to the Applicant to enforce the arbitral award dated 12th June, 2020 and the award on costs dated 24th August, 2020 as a Decree of the Court
  3. 3.The application dated 2nd September, 2020 is allowed with costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

CO
majority

Wrote the judgment

Jurisdiction invoked
Section 36(1) & (3) of the Arbitration Act; Rule 4(1),(2),(6) & (9) of the Arbitration Rules 1997; Sections 1A, 3A and 59(c) of the Civil Procedure Act

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

I proceed to recognize, adopt and enforce the arbitral award dated 12 th June, 2020 together with the award on costs dated 24 th August, 2020 as an order of the Court.
p. 2Recognition and adoption of arbitral award
It is against the foregoing that I find the application dated the 2 nd September, 2020 merited and will allow it with costs.
p. 2Final orders - application allowed with costs
in situations where the Award is not challenged, the Court cannot interfere with the same but is only expected to adopt and enforce it.
p. 2Limited judicial interference with unchallenged awards

Issues in the judgment

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minor

The deponent refers to the additional award on costs as dated 21st August, 2020 while the orders sought and the court's decision refer to 24th August, 2020

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Maurice Oduor Nyakone v Diamond Property Merchants Ltd [2021] KEELC 4198 (KLR)", Case Analysis (2021). Chamber Summons application dated 2nd September, 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4198/eng@2021-02-22

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.