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ELCDismissedMombasa HCCC No 106 of 2013 (referred matters: twin Notices of Motion dated 6th September 2024 and 27th March 2025)

Exquisite Services Limited v Mwakuzimu & 4 others (Environment and Land Case 104 of 2021) [2025] KEELC 5818 (KLR)

Environment and Land Court
28 May 2025
12,745 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~51 min to read original · ~4 min brief

The bottom line

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A Kwale court refused to overturn an arbitration award refunding Kshs 8 million, ruling that consent orders bind parties and fraud claims must be proven, not just alleged.

What this practically means

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Executive summary

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Exquisite Services Limited, the plaintiff, filed twin notices of motion dated 6th September 2024 and 27th March 2025. The first sought to set aside an arbitral award dated 11th June 2024 under Section 35 of the Arbitration Act, alleging arbitrator bias, fraud, misrepresentation, lack of authority of former director and advocate Stephen Njoroge Gikera to record a consent, and denial of a fair hearing. The second sought the re-joinder of the proposed 5th Defendant, a law firm alleged to have received part of the purchase deposit. The dispute arose from a failed 2011 sale of Kwale/Diani Beach Block/108 in which the plaintiff paid a Kshs 8,000,000 deposit; the suit was referred to arbitration where a consent was recorded and a final award issued refunding the deposit and land rates to the plaintiff. The respondents opposed: Gikera swore the directors were kept informed and authorised the consent; the 4th Defendant advocate noted the award was in the plaintiff's favour; the proposed 5th Defendant relied on the plaintiff's bankruptcy. The court framed three issues, confined itself to the Section 35 threshold without re-evaluating arbitral evidence, applied the law that consents bind unless procured by fraud or collusion, held that allegations of fraud were unproved, held that professional-misconduct complaints belong to the Advocates Disciplinary Tribunal, and found the 1st and 2nd Defendants' resiling from their consent abusive of court process. Both applications were dismissed with each party bearing its own costs, the joinder being an exercise in futility.

Questions the Court framed

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

  1. 1.Whether the Notice of Motion applications dated 6th September 2024 and 27th March 2025 by the Plaintiff/Applicant have any merit whatsoever
  2. 2.Whether the parties should be entitled to the reliefs sought
  3. 3.Who bears the costs of the applications

Key legal issues

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01

Whether the arbitral award should be set aside under Section 35 of the Arbitration Act for fraud, bias or misrepresentation

Holding

The application failed; the award was in the Applicant's favour, the consent was voluntarily recorded with the co-director's participation and knowledge, no bias or fraud was proved, and the court cannot re-evaluate arbitral evidence

Reasoning

The court confined itself to the Section 35 threshold, guided by Geo Chem Middle East v Kenya Bureau of Standards. The arbitrator gave all parties an opportunity to be heard; directors were aware of proceedings via email correspondence. The 1st and 2nd Defendants' resiling from the consent they earlier admitted in their defence amounted to abuse of process. Fraud allegations, being unproved, could not justify setting aside. The advocates' conduct fell to the Disciplinary Tribunal.

p. 21
02

Whether the proposed 5th Defendant should be re-joined under Order 1 Rule 10(2)

Holding

Refused as an exercise in futility once the setting-aside application failed

Reasoning

Although the court recited the joinder principles from Nambuye J in Kingori v Chege and Departed Asians Property Custodian Board v Jafier Brothers, and initially found 'great merit' in joinder, it ultimately held joinder would serve no purpose because the substantive application to set aside the award failed. The party's conduct was also a professional-misconduct matter pending before the Advocates Disciplinary Tribunal.

p. 16
03

Whether allegations of professional misconduct against the former advocate and co-director can be determined by the court

Holding

No; such complaints belong to the Advocates Disciplinary Tribunal under the Advocates Act, where complaints are already lodged

Reasoning

Citing Republic v Advocates Disciplinary Committee ex-parte Danstan Omari Mogaka, the court held that determining professional misconduct is the Tribunal's mandate under Sections 55-80 of the Advocates Act, and the court would not usurp it.

p. 23

Legal principles established

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  • The High Court on a Section 35 application may not re-evaluate arbitral evidence; that would be sitting on appeal against the award
  • A consent order or judgment has contractual effect and can only be set aside on grounds justifying setting aside a contract, such as fraud, collusion or misapprehension
  • The burden of proving fraud lies on the party alleging it, and fraud cannot simply be inferred from the facts
  • The onus of determining professional misconduct belongs to the Advocates Disciplinary Tribunal, not the court
  • Courts have inherent jurisdiction to prevent abuse of their process, including where parties resile from consents they voluntarily recorded

Court orders

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  1. 1.The Notice of Motion applications dated 6th September 2024 and 27th March 2025 be and are hereby found to lack merit and are dismissed accordingly
  2. 2.Each party to bear its own costs

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Section 35 of the Arbitration Act; Sections 1A, 1B, 3A and 3B of the Civil Procedure Act, Cap 21; Order 51 of the Civil Procedure Rules 2010; Order 1 Rule 10(2) of the Civil Procedure Rules 2010; Article 159 of the Constitution of Kenya 2010

Relief refused

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Setting aside of the arbitral award dated 11th June 2024

Applicant failed to meet the Section 35 Arbitration Act threshold; allegations of bias, fraud and misrepresentation were not proved and the court could not re-evaluate the arbitral evidence

p. 24

Joinder of the proposed 5th Defendant (former advocates for the plaintiff)

The joinder would be futile as the main application failed; the party had been struck out by consent and its conduct falls within Advocates Disciplinary Tribunal mandate

p. 24

Costs

Each party to bear its own costs.

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.

That the Notice of Motion applications dated 6th September 2024 and 27th March 2025 by the Plaintifi/Applicant herein be and hereby found to lack merit and hence dismissed accordingly.
p. 24Final orders - dismissal of both applications
That each party to bear its own costs.
p. 24Costs order
It is not the function nor mandate of the High Court to re-evaluate such decisions of an arbitral tribunal, when the court was called upon to determine whether or not to set aside and award
p. 13Limits of court's role on setting aside arbitral awards
It is now well settled law that a consent judgment or order has contractual efiect and can only be set aside on grounds which would justify setting a contract aside
p. 17Binding effect of consent judgments/orders
In cases where fraud is alleged, it is not enough to simply infer fraud from the facts.
p. 22Burden of proof of fraud
The aspect of having been coerced into signing the consent is clearly an afterthought and the court feels the need to protect itself from this kind of abuse of its mandate and time.
p. 23Abuse of court process

Issues in the judgment

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minor

The second Notice of Motion is described inconsistently: the introduction and directions refer to it as dated 27th March 2025, but the body describes it as 'The Notice of Motion application dated 23rd January 2025 by the Plaintifi/Applicant'

material

Internal contradiction on joinder: the court finds 'great merit' in the joinder application and states it must be allowed, yet the final orders dismiss both applications

minor

Case number inconsistency in submissions: 'HCCC Case no 117 of 2015' versus earlier reference to 'HCCC No 171 of 2015'

minor

The outcome of the second application (sought by the proposed 5th Defendant firm, per the caption 'The Written Submissions by the Plaintifi the 3rd Director') is blurred; the judgment also records the plaintiff as adjudged bankrupt, which sits uneasily with its capacity to prosecute the suit

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, "Exquisite Services Limited v Mwakuzimu & 4 others (Environment and Land Case 104 of 2021) [2025] KEELC 5818 (KLR)", Case Analysis (2025). Mombasa HCCC No 106 of 2013 (referred matters: twin Notices of Motion dated 6th September 2024 and 27th March 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5818/eng@2025-05-28

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