Case No.

HC. COMM/597/2002

Parties

DAVID CHABEDA & ANOTHER Vs. FRANCIS INGANJI

Rationale & Relevance

RATIONALE

From the ruling, it is apparent that the court followed section 10 of the Arbitration Act which prevents courts from intervening in matters governed by the act unless otherwise provided. Under section 36 of the Act, there is no provision for the court to use their inherent powers to enforce an arbitral award where the mandatory requirements for such enforcement have not been complied with. Thus, the court could not use the inherent powers of the Court under section 3A to cure the failure of the applicant to comply with mandatory statutory requirements.

CASE RELEVANCE

Section 3A of the Civil Procedure Act allows the court to use their inherent powers to achieve the ends of justice or prevent the abuse of the court. However, these inherent powers do not allow the court to overlook mandatory statutory requirements, such as the ones enumerated under section 36 (2). Thus, a party who seeks to enforce their award but derogates from section 36 (2) by failing to produce a duly authenticated original arbitral award or a duly certified copy of it will not have their arbitral award enforced, irrespective of the inherent powers of the court.

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Case No.

HCCOMMMISC/792/2004

Parties

MAHICAN INVESTMENTS LIMITED & 3 OTHERS Vs. GIOVANNI GAIDA & 80 OTHERS

Rationale & Relevance

RATIONALE

The decision of the court rested on the importance of the Arbitration Act which is an act that seeks to bring finality to the disputes of the parties. As a result, the High Court could not act as a Court of Appeal for arbitral matters, reviewing the reasoning and decision of an arbitrator without cause. Consequently, the awards of arbitrators are also not subject to challenge unless they manifest the grounds for an application to setting aside.

CASE RELEVANCE

Section 35 (2)(a)(iv) provides that an award may be set aside where an arbitrator deals with matters that are beyond the scope of issues that the parties referred to arbitration. However, for a party to succeed in pleading this ground, they must illustrate that the arbitrator went on a frolic of their own when issuing the award.

Section 35 (2)(b)(ii) allows for a party to approach the High Court to set aside an award where it violates public policy. Nonetheless, they must prove that the award discloses at least one of the elements of violation of public policy which includes inconsistency with the Constitution of Kenya or other written or unwritten laws, harm to the national interest of Kenya or contrariety to justice and morality.

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Case No.

HCCOMMMISC/108/2006

Parties

MAHINDER SINGH CHANNA Vs. NELSON MUGUK AND ANOTHER

Rationale & Relevance

RATIONALE

The reasoning behind the court’s ruling was the principle of finality of arbitral awards. The court asserted that it would defeat the purpose of arbitration if the time of delivery of the award was determinant upon the actions of the parties. Instead, the award became final once the arbitrator published it. Even if the parties had not appraised themselves on the contents of these awards, the time for setting aside the award begun running from the time the arbitrator published the award and notified the parties of the same.

CASE RELEVANCE

Section 35 (3) provides that an application to set aside an award may not be brought 90 days after the date on which the party making the application had received the award. The date of receipt is not determined by actual delivery of the award to the party. Instead, it refers to the date of publication of the award and a notification to the parties of the same by the arbitrator. Thus, if a party fails to file a setting aside application within 90 days after being notified on the publication of the award, the application will be time barred.

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Case No.

HC. COMM/550/2006

Parties

MERCANTILE LIFE AND GENERAL ASSURANCE COMPANY LIMITED & ANOTHER Vs. DILIP M. SHAH & 3 OTHERS

Rationale & Relevance

RATIONALE

The Judge aligned himself to the decision in University of Nairobi v Multiscope Consultancy Engineers Limited in that, once the arbitrator has signed off the Award and notified the parties that it is ready for collection upon payment of fees and expenses, the act of delivery is within the power and control of the parties and that the object of the entire Act would be undermined if a contrary meaning was given to Section 35(5) of the Act. Furthermore, the Judge was of the school of thought that the act of delivery is simply making the signed copy of the Award available for collection to the parties. He was of the view that Section 332B of the Act did not require the Arbitral Tribunal to send a signed copy of the Award to the parties hence the purpose of Section 35(3) of the Act. Regarding the second issue, the Judge was of the strict view that while public policy is a broad, infinite and malleable concept, it is important to first consider the principle that parties who enter into an arbitration agreement expect a level of finality.

 

CASE RELEVANCE

  • Section 35(3) of the Act provides that an Application for setting aside an arbitral award may NOT be made after 3 months have elapsed from the date on which the party making that Application had received the award.
  • Under Section 17(5) of the Act, the Arbitral Tribunal may rule on a plea on jurisdiction either as a preliminary question or in an arbitral award on merits.
  • When parties agree to have an arbitrator determine a dispute within the arbitration clause, they must take the consequences that the decision may be for or against one of the parties and that not every error committed by the arbitrator becomes a ground upon which the dissatisfied party may apply to set aside the Award.
  • The court, when called upon to decline enforcement of an arbitral award under Section 37 of the Act, does not exercise appellate jurisdiction as the parties are entitled to reserve the same if they wish.

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Case No.

COACAPPL/57/2006

Parties

KENYA SHELL LIMITED Vs. KOBIL PETROLEUM LIMITED

Rationale & Relevance

RATIONALE

The court reached its decision based on the interpretation of public policy which posits that it is in the public interest that litigation must come to an end and that this is echoed through the principle of finality of arbitral proceedings present in the Arbitration Act. The court was of the view that there was no realistic prospect of success of the intended appeal nor was there a ground of appeal that merited serious judicial consideration.

CASE RELEVANCE

  • Arbitration is one of the several dispute resolution methods that parties may choose to adopt outside the courts in this country. The parties may either opt for it in the course of litigation under Order XLV of the Civil Procedure Rules or provide for it in contractual obligation in which event the Arbitration Act, Act No. 4 of 1995 would apply, and the courts take a backseat.

The Arbitration Act came into operation in 2ndJanuary 1996. Together with the Arbitration Rules 1997, they repealed and replaced Chapter 49 Laws of Kenya and its rules which had governed arbitration matters since 1968. A comparison of the two pieces of legislation underscores an important message introduced by the latter Act: the finality of disputes and a severe limitation of access to courts. Sections 6,10,12,15,17,18,28,35 and 39 of the Act are particularly relevant in that regard. According to the court, the message is a pointer to the public policy the country takes at this stage in its development.

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Case No.

HC. COMM/47/2008

Parties

P.N. MASHRU LIMITED Vs. TOTAL KENYA LIMITED

Rationale & Relevance

RATIONALE

Regarding the second issue, the Judge was of the school of thought that “shall” may be construed to be merely directory rather than mandatory in that, the mere use of the word “shall” cannot oust the jurisdiction of the High Court because the word is not necessarily in mandatory terms. In respect of the third issue, the Judge adopted a strict interpretation of Section 35(3) of the Act. In striking out the Defendant’s/Applicant’s Application, the Judge stated as follows: – “It is therefore clear that an application for setting aside an award ought to be made within 3 months from the date of receipt of the Award or within 3 months from the date on which the request for correction or interpretation of an Award was disposed of.”

 

CASE RELEVANCE

  • The word “shall” in statute only signifies that the matter is ‘prima facie’ mandatory and its use is not conclusive or decisive and it may be shown by a consideration of the object of the enactment and other factors that the word is used in a directory sense only.
  • Section 35(3) of the Act talks about “receipt” of the Award as opposed to “publication” of the Award. The two terms are not used interchangeably. When the step taken is not a mere publication but a notification to the parties that the Award is ready, the notice is sufficient delivery of the Award since any other interpretation would introduce unnecessary delays in the arbitral process and deny it the virtue of finality.
  • Whereas the provisions of Section 35(3) of the Act provides that an Application in respect of setting aside an arbitral award may not be made after 3 months have elapsed from the date on which the party making that Application had received the arbitral award, thus giving a window for making an Application even after expiry of the said period, the decision whether or not to allow extension of time to make such an Application is an exercise of judicial discretion and like any other judicial discretion, must be exercised judicially and not capriciously.

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Case No.

COACA/8/2009

Parties

ANNE MUMBI HINGA Vs. VICTORIA NJOKI GATHARA

Rationale & Relevance

RATIONALE

The court’s finding was based upon the principle of finality of awards and their subsequent enforcement. Relying on American jurisprudence, the court was of the view that the finality of arbitral awards and their subsequent enforcement ought to be respected. Otherwise, arbitration would lose its core appeal of expediency and timeliness. The court’s reasoning was also based upon the role of courts in arbitration, which was unnecessary unless they were invited to intervene by the arbitration act in question. Thus, judicial review of arbitral decisions had to be very minimal.  

CASE RELEVANCE

  • Under section 35 (3) of the Act, parties are not allowed to make applications to set aside an arbitral award after 3 months. These timelines should be strictly enforced to ensure that arbitration achieves its core value of expediency and timeliness. Courts should therefore embrace a pro-arbitration policy and refrain from judicial review of arbitral matters especially where the timelines for raising complaints have elapsed.
  • Section 39 of the Act sets out specific requirements for the court’s intervention in a matter already submitted to arbitration. The prior consent of all parties should be obtained before submitting it to the court. Further, the court may only address issues of law and not of fact. While such an intervention is originally reserved for the High Court, the parties may also submit the matter to the Court of Appeal if they agree to do so before the award was given. Alternatively, their questions of law must be of general importance in the eyes of the court to the extent that it substantially affects the rights of the parties. Failure to meet these requirements will result in the court’s refusal to adjudicate the matter.

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Case No.

COACA/9/2012

Parties

NATIONAL CEREALS & PRODUCE BOARD Vs. ERAD SUPPLIERS & GENERAL CONTRACTS LIMITED

Rationale & Relevance

RATIONALE

The reasoning of the court was founded on the principle of finality of arbitral awards and their subsequent enforcement. In the court’s opinion, arbitration required courts to exercise limited functions over arbitral matters. This denoted that the High Court could not be assumed to exercise appellate jurisdiction over arbitral awards as this would open arbitral decisions to constant judicial review. Instead, parties were only allowed to apply to the High Court to set aside the award. An application for setting aside an award was narrower as it was confined to the grounds enumerated under section 35 of the Act. Further, the court declined to admit new evidence because it would lead to endless litigation. New evidence could only be admitted if it met the three principles required for admitting new evidence or if such evidence was deemed to be needful by the court. 

CASE RELEVANCE

  • Section 35 of the Act provides that parties may approach the High Court for the setting aside of an award. However, the High Court does not exercise appellate jurisdiction when hearing such matters. Instead, it exercises original jurisdiction which allows it to admit a setting aside application that is confined to the grounds listed under section 35 of the Act.
  • Rule 29 of the Court of Appeal for East Africa Rules grants the Court of Appeal the power to admit additional or new evidence. This includes evidence from the High Court on an arbitral matter. Nonetheless, this discretion is not unfettered because such evidence may only be admitted if it is needful or if it meets the disjunctive tripartite test for admission of new evidence (The applicant must show that the evidence could not have been obtained with reasonable diligence at the trial court; It must be shown that the evidence has a substantial influence on the result of the case; Such evidence must be apparently credible, even though it is not entirely incontrovertible). 

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Case No.

HC. COMM/695/2012

Parties

KENYA SUGAR RESEARCH FOUNDATION Vs. KENCHUAN ARCHITECTS LIMITED

Rationale & Relevance

RATIONALE

The Judge was of the view that the Applicant had to show that the award was made contrary to justice and morality, inimical to the national interest of Kenya and inconsistent with the Constitution or other laws whether written or unwritten. To the court’s mind, the Applicant failed to satisfy all three of the above principles in its present Application.

CASE RELEVANCE

  • It is essential to look at the agreement/contract in order to determine the scope and terms of the reference to an Arbitral Tribunal. The Arbitral Tribunal should confine itself to the terms of the agreement when determining issues that are before it pursuant to Section 29(5) of the Arbitration Act.
  • A party cannot ground an application to set aside an award of an Arbitral Tribunal outside the provisions of Section 35 of the Arbitration Act. The court does not have jurisdiction to intervene in any matter not specifically provided for in the Arbitration Act which includes applications purporting to stay an award.
  • The court will not interfere with an arbitral award unless some real injustice or substantial diversion from the law can be proved.

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Case No.

HCCOMMMISC/26/2013

Parties

MALL DEVELOPERS LIMITED Vs. POSTAL CORPORATION OF KENYA

Rationale & Relevance

Regarding the decision that the court had no basis for making a finding contrary to what the Arbitrator found, the Judge placed reliance on the school of thought that while the Constitution of Kenya 2010 empowers the High Court to supervise tribunals, it could only do so within the limits of the law provided and it cannot clothe itself with jurisdiction that it does not possess at all.

CASE RELEVANCE

  • Article 165 of the Constitution of Kenya, 2010 gives the High Court supervisory jurisdiction over any person, body or authority exercising a judicial and quasi-judicial function to ensure the administration of justice.
  • The court can only intervene in arbitral proceedings within the parameters envisaged by Section 10 of the Arbitration Act.
  • A court will only set aside a final award delivered by an arbitrator if it is satisfied that the grounds under Section 35 of the Act exist.
  • Section 35 of the Arbitration Act gives the court jurisdiction and power to go beyond glossing over the said arbitral award as it is bound to ask itself whether the conclusions reached by the arbitral tribunal would have been consistent with the decision of the court had the court had the same facts for the underlying dispute been placed before the court for determination.
  • Under Section 39 of the Act, the court can only consider questions of law arising during the arbitral proceedings and only if the parties have consented to lodging of appeals or the Court of Appeal is of the opinion that a point of law is of general importance, due to the final and binding nature of arbitrations.
  • Setting aside an arbitral award becomes operational only after the matter has been heard and determined on merit. Section 35 and Section 37 of the Act are limited to a final award.
  • While the Constitution of Kenya, 2010 empowers the High Court to supervise tribunals, it can only do so within the limits of the law provided. It cannot clothe itself with jurisdiction that it does not possess at all

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Case No.

HCCOMMMISC/27/2014

Parties

NATIONAL OIL CORPORATION OF KENYA LIMITED Vs. PRISKO PETROLEUM NETWORK LIMITED

Rationale & Relevance

RATIONALE

The decision of the court was largely based upon section 10 which requires courts to refrain from interfering with matters governed by the Arbitration Act unless otherwise provided. It carefully assessed the applicable arbitration agreement before finding in favor of the arbitral award. Once the court found that the award was valid under the arbitration agreement Another guiding factor to the court was the doctrine of kompetenz-kompetenz which provides that an arbitral tribunal has the power to rule on its own jurisdiction. Unless the grounds for challenging the jurisdiction of the tribunal were present, the court stated that it was not within its power to decide on the competence of the tribunal. This signifies that arbitration is an end in itself, as the arbitrators do not need to rely on another system such as the courts to declare whether they have the requisite capacity to determine a case. 

CASE RELEVANCE

  • Section 14 provides that the parties are free to create a procedure for challenging an arbitrator. Failing such an agreement, parties are called upon to challenge an arbitrator not less than 15 days after knowing the composition of the tribunal or grounds for challenging an arbitrator such as their lack of impartiality. On the other hand, section 17 provides that any challenge to the jurisdiction of an arbitral tribunal should be raised right after the submission of the statement of defense. These two provisions demonstrate that an applicant has the duty to challenge the jurisdiction of the arbitral tribunal at the earliest opportunity possible.
  • Section 10 of the Act stipulates that no court shall interfere with the matters governed by the act unless otherwise provided for. This means that courts will be quick to uphold arbitration agreements between parties owing to the pro-arbitration policy favored by this provision. Any opposition to the agreement in the form of setting aside the award or refusing the recognition or enforcement of the award will therefore be carefully scrutinized under the limited grounds provided for in section 35 and 37 respectively before it is allowed.

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Case No.

HC.COMM. MISC/39/2014

Parties

KAY CONSTRUCTIONS LIMITED Vs. ATTORNEY GENERAL

Rationale & Relevance

RATIONALE

The court reached its decision based on a narrow and strict interpretation of the grounds for refusal of the recognition and enforcement of the arbitral awards in that any of the grounds relied upon would have to be strictly proved and established.

CASE RELEVANCE

  • The recognition and enforcement of arbitral awards is provided under Sections 36 and 37 of the Arbitration Act, Cap 49 Laws of Kenya. Section 36(3) requires that the party applying for the enforcement of the award to furnish the original arbitral award and the original arbitration agreement or duly certified copies of the same.
  • The provisions of Section 36(3) of the Arbitration Act do not specify who is to certify the award.
  • Section 37 of the Act provides the grounds upon which the Court may refuse to recognize an arbitral award. The court may refuse to recognize the award at the request of the party against whom the award is made if the party proves that: a party to the agreement was under some incapacity; the arbitration agreement is not valid under the applicable law; the proper notice of the appointment of an arbitrator or of the arbitral proceedings was not given to the party or that no party was otherwise unable to present his case; that the award does not fall within the terms of the reference of the arbitration; the composition of the arbitral tribunal was not in accordance with the arbitration agreement; that the arbitral award has not yet become binding or has been set aside; that the making of the award was induced or affected by fraud, bribery, corruption or undue influence.

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Case No.

HCCOMMMISC/213/2014

Parties

TCAT LIMITED Vs. JOSEPH ARTHUR KIBUTU  

Rationale & Relevance

RATIONALE

The principle of pro-arbitration was the backbone of the court’s reasoning. In making a determination as to whether the award should be enforced, the court heavily relied upon section 10 of the act which asks the court to exercise a spirit of non-interference when dealing with arbitration matters. This principle can be seen in the court’s refusal to investigate matters of fact which were held to be fully within the arbitrator’s power. Intervention by the court would only be sought where a party presents questions of law.

CASE RELEVANCE

  • Section 10 of the Act requests the court to refrain from interfering with matters governed by the Arbitration Act. In practice, this provision has been interpreted to mean that a court will uphold an arbitration agreement that was validly concluded, and any challenges to a resulting award should be based on questions of law and not of fact, because questions of fact are solely within the domain of the arbitrator.
  • Section 36 (1) requires the High Court to enforce an award upon an application in writing. However, such enforcement is subject to section 37. Thus, a court will investigate whether there are grounds for refusal of recognition or enforcement of an award before acceding to an application to enforce an arbitral award

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Case No.

HCCOMMMISC/62/2016

Parties

CONTINENTAL HOMES LIMITED Vs. SUNCOAST INVESTMENTS LIMITED

Rationale & Relevance

RATIONALE

The guiding factor in the court’s decision was the test for setting aside an award on the grounds of public policy. The court noted that where an applicant claims that an award has violated public policy, the award must meet either of the elements in the disjunctive test for determining a violation of public policy. The court was also guided by the principle of finality of arbitral awards and a pro-arbitration policy in choosing to carefully examine the terms of the award without hurriedly setting it aside. After the court satisfied itself that the arbitrator was acting within the scope of their powers, it upheld the award. This demonstrates the court’s willingness to refrain from judicial review of arbitral decisions, allowing arbitration to be an end in itself. 

CASE RELEVANCE

  • Section 35 (2)(a)(iv) provides that an award may be set aside where an arbitrator deals with matters that are beyond the scope of issues that the parties referred to arbitration. However, for a party to succeed in pleading this ground, they must illustrate that the arbitrator went on a frolic of their own when issuing the award.
  • Section 35 (2)(b)(ii) allows for a party to approach the High Court to set aside an award where it violates public policy. Nonetheless, they must prove that the award discloses at least one of the elements of violation of public policy which includes inconsistency with the Constitution of Kenya or other written or unwritten laws, harm to the national interest of Kenya or contrariety to justice and morality

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Case No.

COMM MISC 548/2016

Parties

KENYA AIRFREIGHT HANDLING LTD. (KAHL) Vs. MODEL BUILDERS & CIVIL ENGINEERS (K) LTD.

Rationale & Relevance

RATIONALE

The Judge was of the school of thought that in determining whether an arbitral award has jurisdiction or not, the court ought to interrogate four issues:

  1. Is there a valid arbitration agreement?
  2. Is the arbitral tribunal properly constituted?
  3. Have the parties submitted themselves to arbitration in accordance with the arbitration agreement?
  4. Are the matters submitted to arbitration arbitrable and within the scope of the arbitration agreement?

In this case, the Judge opined that the Applicant faltered on the third ground regarding parties submitting themselves in accordance with the Arbitration Agreement. Regarding his strict interpretation of the time limits, the Judge was of the view that he had no powers to redraw the contract and extend the time limits.

CASE RELEVANCE

  • Section 17 of the Act grants an arbitral tribunal the competence to rule on its own jurisdiction. This is known as the Competence-Competence (Kompetenz-Kompetenz) principle. According to Section 17(2) of the Act, a party raising an objection to the arbitral tribunal’s jurisdiction is to do so not later than the submission by the party of a statement of defense.
  • Section 17(c) of the Act vests the court with the power to determine whether an arbitral tribunal has jurisdiction. The power may only be exercised once a party has raised an objection before the arbitrator and the objection was subsequently declined.

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Case No.

CA/98/2016

Parties

EZRA ODONDI OPAR Vs. INSURANCE COMPANY OF EAST AFRICA LTD

Rationale & Relevance

RATIONALE

The decision of the court was based upon section 35 (4) which asks the court to take such other action that will eliminate the grounds for setting aside the arbitral award. This means that where a court can distinguish between the terms of the award that are subject to being set aside from those that are not, it will then uphold that part of the award that does not disclose the grounds for a setting aside application. Section 35 (2)(a)(iv) also formed the basis of the court’s judgement because the court maintained that it would not uphold an arbitral award if the arbitrator went beyond their scope of reference when making the arbitral award.

RELEVANCE

  • Section 35 (4) stipulates that courts should take such other action that will eliminate the grounds for setting aside the arbitral award. This means that courts will not set aside an entire award where some terms of the award were rightfully rendered within the arbitrator’s jurisdiction. Courts are therefore allowed to partially set aside an award if part of the award discloses grounds for a setting aside application.
  • Section 35 (2)(a)(iv) provides that an application can be set aside if an arbitrator considers matters that are beyond their scope of reference. Arbitrators should therefore be fully aware of the matters that are referred to them in the arbitration agreement to prevent rendering an award that may be subject to a setting aside application.

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Case No.

HC. COMM/264/2017

Parties

MASON SERVICES LIMITED Vs. SAFARICOM LIMITED

Rationale & Relevance

RATIONALE

The decision of the court was based upon the principles of expediency and timeliness which are essential features of arbitration. Because the setting aside application was filed outside of the timelines stipulated, the court had no choice but to deny the application. The court also calculated the time window stipulated under section 35 (3) from the time the arbitrator published the award and notified the parties because any other approach would lead to unnecessary delays from the parties in the actual collection of the award. In reassessing the terms of the award, the court also favored a pro-arbitration policy which made them hesitant to interfere with the arbitrator’s decision where it complied with the terms of the arbitration agreement and the Arbitration Act.

CASE RELEVANCE

Section 35 (3) provides that an application to set aside an award may not be filed 3 months after the date of the receipt of the award. The date of receipt refers to the date on which the arbitrator notifies the parties that the award is ready for collection. However, the court may allow an exception for late filing of this application where the applicant shows that the delay in actual collection of the award to comprehend its contents was caused by the other party, or that the other party frustrated their efforts to collect the award.

This case also clarified that an arbitrator may issue general damages for breach of contract only if it is shown that the conduct of the liable party was oppressive, high handed, outrageous, insolent, or vindicative.

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Case No.

HC.COMM. MISC/E197/2018

Parties

PESA PRINT LIMITED Vs. ATTICON LIMITED & ANOTHER

Rationale & Relevance

RATIONALE

The reasoning of the court was founded on the principle of non-interference with arbitration matters as stipulated under section 10 of the Act. It refrained from re-examining the matters already canvassed by the arbitral tribunal to reinforce the finality of arbitral awards. Moreover, it was apparent that the jurisdiction of the court in this matter was confined to the grounds stipulated under section 35 and 37. Failure to prove these grounds would restrict the court from asserting its authority over the arbitral matter. The court was also keen on the swift nature of arbitration. This was because it refused the enjoinder of new parties with unnecessary delay especially after the applicant had the opportunity to enjoin them during the arbitral proceedings.

 

RELEVANCE

  • Section 5 of the Act provides that if a party fails to raise an objection to non-compliance within the requisite time frame, such a party will be held to have waived their right to object. Where no timelines are prescribed by the parties, the party has the responsibility to raise the objection without undue delay. Waiver of the right to object will prevent a party from raising an objection in any further proceedings, including proceedings before a court of law.
  • Section 35(2)(a)(vi) of the act provides that an award may be set aside on grounds of fraud, bribery, undue influence, or corruption. Jurisprudence from the Court of Appeal provides that a court may exercise original jurisdiction in investigating an arbitral matter that manifests either of the aforementioned grounds. Such original jurisdiction allows the court to admit new evidence. However, if a party does not prove how the arbitral proceedings were tainted with either fraud, bribery, undue influence, or corruption, the court will cease to exercise original jurisdiction and decline to admit new evidence presented by the parties.

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Case No.

HC.COMM. MISC/E073/2018

Parties

GERICK KENYA LIMITED Vs. HUNDA MORTOCYCLE LIMITED

Rationale & Relevance

RATIONALE

The court arrived at its decision by considering the arbitrability of fraud. As per the tripartite disjunctive test of deciding the arbitrability of fraud, the court held that the matter was arbitrable since it did not give rise to complex issues before the tribunal. Further, it was more desirable to uphold arbitration agreements between parties to prevent an erosion of faith in arbitration as a dispute resolution mechanism in the commercial world.

CASE RELEVANCE

  • As per section 35 (2)(a)(iv), an award may be challenged if the arbitrator has exceeded the scope of the matters referred to arbitration. This generally includes criminal proceedings. However, mere fraud as a criminal proceeding will not bar the arbitrator from exercising their jurisdiction where the fraud in question is in line with the tripartite test for illustrating the arbitrability of fraud.
  • Section 32 (c) of the Arbitration Act gives the arbitrator power to decide upon the interest and the terms therein when issuing an award. It matters not whether the interest was awarded from a date that preceded the dispute.

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Case No.

Parties

GLENCORE GRAIN LTD Vs. TSS GRAIN MILLERS LTD

Rationale & Relevance

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Case No.

Parties

GOLDEN HOMES (MANAGEMENT) LIMITED Vs. MOHAMMED FAKRUDDINN ABDULLAI & ANOTHER; GOLDEN HOMES LIMITED

Rationale & Relevance

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Case No.

Parties

KENFIT LIMITED Vs. CONSOLATA FATHERS

Rationale & Relevance

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