Wakilii

Kom Consults Limited v M s Nambale Enterprises Ltd and Another (Miscellaneous Application No. 1144 of 2025)

High Court · [2026] UGCOMMC 155 · 2026 Application Granted — Award Set Aside AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside arbitral award arising from Arbitral Award Cause No. 034 of 2024
Decision
Arbitral award set aside in its entirety; related enforcement application dismissed

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

Held that the Applicant was not a party to, and is not bound by, the arbitration agreement in the Works Contract between the 1st and 2nd Respondents. The Applicant was engaged by UNCDF under a separate consultancy contract, was not a signatory to the Works Contract, and did not consent to arbitration. None of the recognised exceptions to the signatory requirement (group of companies doctrine, veil-piercing, agency, or implied consent through conduct) applied. The arbitrator therefore lacked jurisdiction over the Applicant. Further held that the arbitral award was composite and unapportioned, with liability findings against the 2nd Respondent derivative of conduct attributed to the Applicant. The award could not be severed under the proviso to Section 34(2)(a)(iv) of the Arbitration and Conciliation Act without impermissible judicial modification. The award was set aside in its entirety and the related enforcement application dismissed.

Outcome

Arbitral award set aside in its entirety; related enforcement application dismissed

Facts

In December 2017 UNCDF entered into a delegation agreement with the European Union to implement the Development Initiative for Northern Uganda. The 2nd Respondent (Adjumani District Local Government) engaged the 1st Respondent (Nambale Enterprises Ltd) under a Works Contract for road rehabilitation. Separately, UNCDF engaged the Applicant (Kom Consults Limited) under a Contract for Consultancy Services dated 12th May 2020 to provide technical assistance to several District Local Governments including the 2nd Respondent. The Applicant's responsibilities included conducting joint measurements, reviewing interim payment claims, and transmitting them through UNCDF channels. The Applicant reported to and was remunerated by UNCDF and had no contractual nexus with either Respondent. Disputes arose on the Works Contract. The 1st Respondent applied to UIPE for appointment of an arbitrator. Engineer Ben Kiwu was appointed and notified the 1st Respondent, 2nd Respondent and Applicant. The 1st and 2nd Respondents consented but the Applicant did not sign any consent, did not respond to the Statement of Claim, and did not participate in the arbitral proceedings. The Arbitrator proceeded and on 28th April 2024 rendered a composite award against both Respondents totalling UGX 469,229,903, without apportioning liability between them. The 1st Respondent filed HCMA No. 202 of 2025 for recognition and enforcement of the Award against both Respondents. The Applicant filed the present application to set aside the Award.

Issues

  1. Whether the Applicant is a party to, or otherwise bound by, the arbitration agreement contained in GCC 25.4 and SCC 25.4 of the Works Contract between the 1st and 2nd Respondents.
  2. Whether the Award, if infirm as against the Applicant, is severable so as to permit its recognition and enforcement against the 2nd Respondent alone.
  3. What, in consequence, is the proper disposal of HCMA No. 202 of 2025.

Orders

  • Application allowed.
  • The Arbitral Award dated 28th April 2024 made by Engineer Ben Kiwu in Arbitral Award Cause No. 034 of 2024 is hereby set aside in its entirety.
  • HCMA No. 202 of 2025 is consequently dismissed.
  • Each party shall meet their costs in HCMA No. 1144 of 2025 and HCMA No. 202 of 2025.

Rules and key headnotes

Arbitration Agreement — Consent — Non-Signatory Parties
Arbitration is a creature of consent and a party cannot ordinarily be compelled to participate in arbitration or be bound by an arbitral award unless, in exercise of their autonomy, such party consented to the proceedings. A non-signatory to an arbitration agreement is not bound by it unless one of the recognised exceptions applies: group of companies doctrine, piercing of the corporate veil, agency, or implied consent through conduct.
Arbitration Agreement — Non-Signatory Binding — Group of Companies Doctrine
The group of companies doctrine may bind a non-signatory to an arbitration agreement where there is a direct relationship between the non-signatory and the signatory party, commonality of subject-matter, and the transactions form part of a composite transaction such that performance of one is dependent on the others. The doctrine remains tethered to demonstrated consent, commonality of subject-matter, and composite transactions. Where separate contracts have different contracting parties, different subject-matter obligations, different sources of funding, and different dispute-resolution architectures, they are not components of a single composite transaction.
Arbitration Agreement — Implied Consent Through Conduct
A non-signatory's conduct may evidence acceptance of an arbitration agreement where the conduct is inconsistent with anything but acceptance. However, mere notification by being copied in correspondence during arbitral proceedings cannot operate as consent. Where a party declines to sign consent to the arbitrator's appointment, files no response, pays no fees, leads no evidence, tenders no submissions, and attends no sitting, no consent is evidenced in conduct.
Arbitral Award — Jurisdiction — Effect of Lack of Jurisdiction
Where an arbitrator lacks jurisdiction over a party because that party is not bound by the arbitration agreement, the arbitral award in so far as it purports to bind or impose liability upon that party is a nullity ab initio.
Setting Aside Award — Severability — Section 34(2)(a)(iv) Proviso
The proviso to Section 34(2)(a)(iv) of the Arbitration and Conciliation Act permits severance of an arbitral award only where the decisions on matters within the reference can be cleanly and surgically isolated from those beyond it, without disturbing the integrity of what remains. Where the two are intermingled, where severance would require judicial re-weighing of evidence, re-attribution of fault, recalculation of quantum, or re-reasoning of the tribunal's findings, the whole award must fall. The proviso is a rule of surgery, not of reconstruction.
Setting Aside Award — Court's Powers — No Power to Modify
Section 34 of the Arbitration and Conciliation Act is not an avenue for the court to amend, modify, or correct an arbitral award. A court cannot re-appreciate the evidence, cannot substitute its own view for that of the arbitrator, and cannot review the matter afresh. Where an award is composite, unapportioned and inseparably interwoven, and one party's liability is derivative of and built upon findings about acts and omissions laid against another party over whom the arbitrator lacked jurisdiction, the court has no lawful option but to set the award aside in its entirety.
Enforcement of Award — Effect of Setting Aside
Under Section 36 of the Arbitration and Conciliation Act, the recognition and enforcement of an arbitral award depends upon the existence of a binding, enforceable award. Where the award is set aside in its entirety, the foundation for recognition and enforcement is removed and an application for recognition and enforcement of the same award cannot succeed and must be dismissed.

Legislation cited (9)

Cases cited (31)

  • Fiona Trust & Holding Corp v Privalov [2007] UKHL 40
  • Krone Uganda Limited v Kerilee Investments Limited (HCMA No. 2057 of 2023)
  • TMA Architects and another v Prime Consultants Limited (HCMC No. 0080 of 2021)
  • Afri-Power Engineering Company Ltd v Roko Construction Limited (HCCS No. 216 of 2022)
  • Dallah Real Estate & Tourism Holding Co v Ministry of Religious Affairs of Pakistan [2010] UKSC 46
  • Reveille Independent LLC v Anotech International (UK) Limited [2016] EWCA Civ 443
  • Dow Chemical Group v Isover-Saint-Gobain, ICC Award No. 4131
  • Reckitt Benckiser (India) Pvt Ltd v Reynders Label Printing India Pvt Ltd (2019) 7 SCC 62
  • Thomson-CSF, S.A. v American Arbitration Association, 64 F.3d 773 (2d Cir. 1995)
  • Arthur Andersen LLP v Carlisle, 556 U.S. 624 (2009)
  • GE Energy Power Conversion France SAS v Outokumpu Stainless LLC, 140 S. Ct. 1637 (2020)
  • Chloro Controls India Pvt Ltd v Severn Trent Water Purification Inc (2012) INSC 542
  • Ameet Lalchand Shah v Rishabh Enterprises (2018) 15 SCC 678
  • Oil and Natural Gas Corporation Ltd v Discovery Enterprises Pvt Ltd (2022) 9 SCC 1
  • Peterson Farms Inc v C & M Farming Ltd [2004] EWHC 121 (Comm)
  • Dallah Real Estate & Tourism Holding Co v Ministry of Religious Affairs of Pakistan [2009] EWCA Civ 755
  • Cox and Kings v SAP India Pvt Ltd (2023) INSC 1051
  • J.G. Engineers Pvt. Ltd v Union of India (2011) 5 SCC 758
  • National Highways Authority of India v Trichy Thanjavur Expressway Ltd. DHC 5834
  • Union of India v Larsen Air Conditioning & Refrigeration Co., 2019 SCC OnLine All 7205
  • Kampala International University v Housing Finance Company Limited (HCAC 38/36 of 2024)
  • Democratic Governance Facility v Foundation for Human Rights Initiative (HCMA No. 7 of 2023)
  • Parsha International Limited T/a Champion Bet/Slots v Homebet Limited (HCMC No. 598 of 2021)
  • McDermott International Inc. v. Burn Standard Co. Ltd., (2006) 11 SCC 181
  • Kinnari Mullick v. Ghanshyam Das Damani, (2018) 11 SCC 328
  • Kenya Bureau of Standards v Geo-Chem Middle East [2017] eKLR
  • Easy Properties Limited and another v Express Connections Limited and another (Civil Misc. Application No. E007 & E003 (Consolidated) of 2020) [2021] KEHC 39 (KLR)
  • Nyutu Agrovet Limited v Airtel Networks Kenya Limited [2019] eKLR
  • Kwizera Eddie v Attorney General (SCCA No. 01 of 2008)
  • Oshlack vs. Richmond River Council (1998) 193 CLR 72
  • M/s Nambale Enterprises Ltd v Adjumani District Local Government and KOM Consults Limited (Miscellaneous Application No. 202 of 2025)

Full judgment

↓ Download PDF

The original judgment as reported. Read the original PDF before relying on any passage.

Kom Consults Limited v M s Nambale Enterprises Ltd and Another (Miscellaneous Application No. 1144 of 2025) [2026] UGCommC 155 (21 April 2026)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.