Elite Westlands Limited & another v Kiama (Environment and Land Miscellaneous Application E003 of 2024) [2024] KEELC 7317 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the award published by the sole arbitrator, William Edward Kosar, MCIArb on 19.6.2024 should be set aside
Key legal issues
#Whether the applicants were given proper notice of the arbitrator's appointment and whether the award should be set aside on that ground
Ground rejected - the applicants never questioned the arbitrator's validity before the tribunal and wholly submitted to its jurisdiction; the objection is belated
The applicants filed a statement of defence on 26.6.2023 and nowhere questioned the validity of the arbitrator or the proceedings. Complaints about notice of appointment are factual issues that must be raised in limine before the arbitration body. Having wholly submitted to the jurisdiction and participated without contesting validity, they cannot cry foul only after an unfavourable decision.
Whether the award conflicts with public policy, whether the applicants were unable to present their case, and whether the arbitrator exceeded the scope of the reference
Grounds rejected - the applicants fully participated, the award was confined to the issues framed (breach of contract and damages), and the complaints amount to an appeal on the merits
The applicants participated fully, called witnesses and filed submissions. The issues they framed before the arbitrator related to breach of contract and damages, and the award was confined to those issues. Complaints of inability to present their case, public policy conflict and excess of scope are matters in the realm of an appeal, not setting aside under section 35.
Legal principles established
#- Once parties agree to settle disputes through arbitration, an aggrieved party may only approach the High Court to set aside the award on the specified grounds under section 35 of the Arbitration Act
- Grounds such as improper notice of the arbitrator's appointment are factual matters that must be raised before the arbitral body; a party who submits to jurisdiction cannot later challenge the award on those grounds
- Substantial justice does not permit a party to invoke provisions of the law unduly and belatedly to take advantage of an opponent
- Court intervention in arbitral awards must be provided for in legislation, consistent with section 10 of the Arbitration Act and party autonomy
Court orders
#- 1.The application dated 26.6.2024 is dismissed
- 2.Costs to the respondent
- 3.A copy of the ruling to be placed in the file L Misc E115 of 2024
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 35 of the Arbitration Act
Relief refused
#Setting aside of the arbitral award published on 19.6.2024 plus costs
Applicants fully participated in the arbitration, did not raise notice or jurisdictional objections in limine, and the remaining grounds lie in the realm of an appeal
Costs
Application dismissed with costs to the respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the end, I find that the application dated 26.6.2024 is not merited, the same is hereby dismissed with costs to the respondent. A copy of this ruling is to be placed in the file L Misc E115 of 2024.
Once an award is issued, an aggrieved party can only approach the High Court for setting aside the award, only on the specified grounds.
The issues relating to the notice of appointment of the arbitrator are factual ones which ought to have been raised in liminine, before the arbitration body.
Substantial Justice frowns upon a party who invokes provisions of the law unduly and at a later stage of a proceeding to take undue advantage against an opponent.
Issues in the judgment
#The refund figure in the arbitral claim is recorded with an apparent typographical error
The judgment closes describing itself as a 'ruling' although it determines a Notice of Motion characterised as a judgment for analysis
Parties are not named in the judgment body; only counsel names and the deponent Nuru A Said appear, and 'Plaintiff/Defendant' appear in the attendance while 'Applicants/Respondent' are used in the text
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Elite Westlands Limited & another v Kiama (Environment and Land Miscellaneous Application E003 of 2024) [2024] KEELC 7317 (KLR)", Case Analysis (2024). Miscellaneous application dated 26.6.2024 (to be placed in file L Misc E115 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7317/eng@2024-10-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.