1.In response to the claimant’s chamber summons dated February 8, 2023, the respondent filed a notice of motion dated March 15, 2023 under certificate of urgency seeking orders that;
2.The notice of motion is based on the grounds set out on its face and supported by the affidavit of Mary Ng’ang’a.
3.The respondent/applicant catalogues 15 reasons as to why the arbitral award published on December 15, 2022 should be set aside.
4.The first five (5) reasons are based on the argument that the arbitral award is contrary to public policy. Another three (3) urge that the arbitral tribunal acted outside its mandate.
5.The rest address issues of failure to take into account the fact that the claimant refused to collect his dues, irregularities, inconsistencies and irreconcilable findings by the arbitral tribunal, determination on the basis of matters not pleaded, bias and partiality, failing to consider the reason behind the redundancy and considering a payment voucher adduced by the claimant/respondent as part of his salary among others.
6.Finally, the applicant urges that the award will occasion great miscarriage of justice to the applicant if enforced.
7.In response to the notice of motion, the claimant filed a notice of preliminary objection dated March 28, 2023 on the same day on the ground that an application to set aside an arbitral award may be made within 3 months and the applicant herein made the application after expiry of the three-month period stipulated by the statute.
8.The claimant urges that the application by the respondent is incompetent, bad in law and ought to be dismissed with costs for being statute barred and the court had no jurisdiction to hear and determine the application.
9.Counsel for the claimant submitted that the court had no jurisdiction to enlarge time in arbitral proceedings as the application was filed after the 90 days period after the award was published.
10.That the applicant’s reliance of systems failure was to no avail as the application was filed the last minute and was served on the morning of May 31, 2023.
12.Counsel urged the court to strike out the notice of motion with costs.
13.Counsel relied on the provisions of section 36(3) of the Arbitration Act to urge that the instant notice of motion by the respondent/applicant was statute barred.
15.Regarding receipt of the arbitral award by parties to arbitral proceedings, counsel urged that the arbitral tribunal notified the parties that the arbitral award would be published on December 15, 2022 and was published but the notice of motion was filed on March 17, 2022 and was thus filed late and no leave to enlarge time was sought.
17.Counsel urged the court to find the notice of motion was filed out of time and dismiss it and uphold the preliminary objection.
18.Counsel for the respondent/applicant submitted that the notice of motion was filed on March 15, 2023 and served.
20.Counsel admitted that the claimant’s notice of preliminary objection was ground on the jurisdiction of the court to hear and determine the notice of motion dated March 15, 2023 which counsel urged that it was filed within the 3 months period and the respondent received the award on December 19, 2023.
21.Counsel urged that the instant preliminary objection was a derogation from the principle enunciated in the Mukisa case.
22.Counsel submitted that they filed the notice on March 15, 2023 but the registry stated that it had issues with filing and in any case the arbitral award was received on December 19, 2023.
23.Counsel urged the court to dismiss the preliminary objection.
24.The issues for determination are;
25.As to the competency or otherwise of the claimant’s notice of preliminary objection dated March 28, 2023, the homeport are the often cited sentiments of the Court of Appeal in Mukisa Biscuits Manufacturing Co Ltd v West End Distributors Ltd (Supra).
26.According to Law JA;
27.Sir Charles Newbold P. stated;
29.The gravamen of the claimant’s objection is that the respondent’s notice of motion dated March 15, 2023 was filed out of the duration prescribed by section 35(3) of the Arbitration Act, 1995 which provides as follows;
30.It requires no belabouring that the issue of limitation of time within which an act ought to be done implicates the jurisdiction of the court to hear and determine matters arising there from as is the case here and as aptly captured by Nyarangi JA in Owners of Motor vessel “Lilian S” v Caltex Oil (Kenya Limited) 1989 KLR 1, jurisdiction is everything.
31.In determining this issue, the court is guided by the sentiments of the Court of Appeal in Anne Mumbi Hinga v Victoria Njoki Gathara (supra) where after itemising the grounds on which a party may apply for the setting aside of an arbitral award under section 35 of the Arbitration Act, the court stated;
32.In light of the foregoing, the court is satisfied that the notice of preliminary objection dated March 28, 2023 meets the threshold of a preliminary objection.
33.As to whether the respondent’s notice of motion dated March 15, 2023 is statute barred, parties have adopted contrasting positions. While the claimant’s counsel submitted that it was filed out of time, the respondent’s counsel submitted that it was filed within the three months period and thus within time.
34.The respondent’s counsel also submitted that even if the application was filed after March 15, 2023, it was filed within time since the respondent received the arbitral award on December 19, 2023 and referred the court to the top page of the arbitral award for the date.
35.The copy on record has no date as to when it was received.
36.A forwarding email or letter would have effortlessly established the fact of receipt beyond peradventure, but none was availed.
37.Court records reveal that the notice of motion was filed on March 17, 2023 at 10.37 am but received by the registry on March 21, 2023 when it was placed before the court and directions were issued.
38.This is consistent with the claimant’s counsel submission that the notice of motion was uploaded on the e-filing platform on March 17, 2023 and fully paid for on March 21, 2023, when it was deemed to be properly filed.
39.Puzzlingly, counsel’s submission that the notice of motion was filed on March 15, 2023 but the registry had challenges was not attested to by the supporting affidavit or any evidence from the registry. An email or letter to the registry on the urgency with which the notice of motion had to be on record would have vividly demonstrated the submission which in this instance is not supported by any scintilla of evidence.
40.Equally, the respondent counsel’s argument that the respondent received the arbitral award on December 19, 2022 cannot avail the respondent as the notice of motion was effectively filed on March 21, 2023 when the filing fee was fully paid.
41.Although section 35(3) of the Arbitration Act has no express provision on enlargement of time to file the application to set aside, the provision uses the phrase “may not” as opposed to “shall not”, the respondent made no application for enlargement of time, an application the court would have entertained and rendered a ruling.
42.Relatedly, there is judicial authority to the effect that actual receipt of the arbitral award or its dispatch to the parties is not a requirement of the provisions of section 36(3) of the Arbitration Act, 1995.
43.In University of Nairobi v Multiscope Consultancy Engineers Ltd (supra), the court stated as follows;
44.In the instant case, it is common ground that the arbitral tribunal notified the parties that the award would be published on December 15, 2022 and was published in the presence of the parties and parties are in agreement as to the date of publication.
45.For the above-stated reasons and guided by the Court of Appeal decision Anne Mumbi Hinga v Victoria Njoki Gathara (supra), it is the finding of the court that the notice of motion by the respondent dated March 15, 2023 was filed out of time and the court lacks jurisdictioin to hear and determine the notice of motion and it is accordingly dismissed.
46.Parties shall bear own costs.
It is so ordered.