BY SAM ALFAN.
Clasico builders (k) Ltd has issued statutory demand demanding over Sh33.4 million from Dar Iman Ltd.
This follows the dismissal of an application the developer Dar Iman, which sought to set aside the award.
Justice Majanja dismissed the application and allowed the final award published by Christopher K. Kihara on January 15, 2021 together with the post-award clarifications and corrections dated February 16, 2021.
The judge directed the contractor to enforce the award after upholding the arbitrator’s decision.
According to CR12, the directors of Dar Iman ltd are Caroline Wamuyu Wainaina and Anthony Peter Wainaina Kamau.
The judge agreed with Clasico’s submissions that the court is barred from adjudicating on claims between the same parties that have already been determined by a court or tribunal of competent jurisdiction.
The developer had sought to suspend the execution of the award published by the arbitration tribunal that directed the company to pay the construction firm Sh27,845,670 together with interest of 14 percent per annum until payment is made in full.
Court filings showed that Clasico builders (k) Ltd and Dar Iman Ltd had entered an agreement for the construction of six residential houses and ancillary external works at Lower Kabete on Farasi Lane.
The agreement stipulated that the project was to cost Sh185 million and was to take a period of 41 weeks with the date of practical completion being August 1, 2013. The contractor was also expected to issue monthly completion certificates.
The dispute arose when Clasico claimed that despite having worked, finalized and handed over the project, Dar Iman refused or neglected to pay the project architect’s final account certificate of Sh16,103,520.00 plus interest of 10,708,840.80 due as at July 30, 2020.
The agreement signed by the parties provided that disputes were to be heard and determined by way of arbitration. The case was referred to Kihara as the sole arbitrator.
After hearing the parties’ arguments to the dispute, the Arbitrator published the Final Award on January 15, 2021 (“the Award”).
The Arbitrator ordered Dar Iman to pay Clasico Sh. 27,845,670.00 together with interest at the rate of 14% pa until payment in full and the Arbitrator also dismissed Dar Iman’s counterclaim.
Dar Iman argued that the arbitrator wrongly and on its own applied the principle of hearsay and declined to rely on written evidence submitted by them yet upheld and relied on the same evidence filed by the Respondent to find in its favour.
The company stated that this is contrary to the rules of natural justice and connotes bias on the part of the Arbitrator against Clasico.
