Automated Summary
Key Facts
This judgment from the High Court of Kenya (Milimani Law Courts) dated January 29, 2026, concerns Miscellaneous Civil Application E878 of 2024. The Applicant, Isaac Aluochier t/a Aluochier Dispute Resolution, sought to have the Court recognize and enforce an arbitral award dated July 21, 2024, regarding disputes involving Ali Abdi Bule & 1987 Others (Respondents) and Lempaa Vincent Suyianka (Interested Party). The Applicant argued that Article 50(1) of the Constitution constituted an arbitration agreement between the parties. The Court determined that Article 50(1) of the Constitution did not constitute a valid arbitration agreement as required by Section 36(3)(b) of the Arbitration Act. Consequently, the Court found the application non-compliant with the Arbitration Act and struck it out with no order as to costs.
Issues
- The court determined whether to recognize and enforce an arbitral award dated 21 July 2024, finding the application defective due to lack of an arbitration agreement and striking it out under Section 36(3)(b) of the Arbitration Act.
- The court considered who should bear costs for the application but, as the application was struck out without costs order, the issue was rendered moot.
Holdings
The court ruled that the Applicant's motion to recognize and enforce the arbitral award was incompetent because it failed to provide an original arbitration agreement as required by Section 36(3)(b) of the Arbitration Act. The court determined that Article 50(1) of the Constitution and the Arbitration Act did not constitute a valid arbitration agreement between the parties, as arbitration agreements must be private, consensual, and contractual in nature. Consequently, the court struck out the motion with no order as to costs.
Legal Principles
The court held that enforcement of an arbitral award under the Arbitration Act requires a valid consensual and contractual arbitration agreement. The court found Article 50(1) of the Constitution does not automatically create such an agreement, rendering the enforcement application defective for lack of the required written agreement.
Precedent Name
- Nyutu Agrovet Limited v Airtel Networks Kenya Limited
- Riley Services Limited v Attorney General
- Synergy Industrial Credit Limited v Cape Holdings Limited
- Kibuwa Leasing & Management Limited v Jadala Investments Limited
- Geo Chem Middle East v Kenya Bureau of Standards
- Blue Thaitian SRL v Alpha Logistics Services
Cited Statute
- Arbitration Act, Section 37
- Constitution of Kenya, Article 50(1)
- Leadership and Integrity Act, 2012, Sections 12A and 13
- Arbitration Act, Section 36(3)
Judge Name
Janet Mulwa
Passage Text
- Given the above, this Court is not convinced by the Applicant's argument that by dint of Article 1, 2 & 3(c) of the Constitution and Section 2 of the Arbitration Act that Article 50(1) of the Constitution constituted an arbitration agreement as between the Interested Party and Respondents. As earlier observed, arbitration agreements are private, consensual and contractual in nature whereas by dint of Article 1, 2 & 3(c) of the Constitution, do not aid the Applicant's argument and or operationalize Article 50(1) of the Constitution to constitute an arbitration agreement.
- Section 36(3) of the Arbitration Act is couched in mandatory terms. And it is apparent given this Court's earlier rendition that the Applicant's chamber summons is non-compliant with Section 36(3) (b). In the absence of an original arbitration agreement, the Court is of the view that the enforcement motion is incompetent for non-compliance with the provisions of Section 36(3) (b) of the Act. The motion is therefore struck out with no order as to costs.
- We must reiterate that arbitration is meant to expeditiously resolve commercial and other disputes where parties have submitted themselves to that dispute resolution mechanism.