DINESH CONSTRUCTION LTD. AND KENYA RETIREMENT BENEFIT SCHEME Vs. AIRCON ELECTRA SERVICES
For the first issue, the Court stated that resolution of the issue turns to interpretation of Section 35(3) of the Arbitration Act and that the time began running from 1st July, 2020 when the Arbitrator notified the parties that the Award was ready for collection. Hence, the Applicant ought to have filed the application to set aside by 30th September, 2020. This decision was also informed by a number of authorities where it was held that actual receipt of the signed copy of the award by the party is not necessary but when the Arbitral Tribunal notifies the parties that a signed copy of the award is ready for collection, then, the date of such notice is deemed to be the date of delivery and receipt of the award.
For the second issue, the Court stated that public policy as a ground for setting aside an arbitral award must be narrow in scope. Further, it cannot be vague and generalized. The Court was of the opinion that a party seeking to challenge an award on the ground of public policy must identify the public policy which the award allegedly breaches and must show which part of the award conflicts with the public policy. The claim was pleaded and the arbitrator considered the evidence before him in line with his jurisdiction. Whether the arbitrator got it right or wrong is not a ground for intervention less so on the basis of public policy.
For the third issue, the Court stated that since the Applicant’s application seeking to set aside the award had already been dismissed, there was no reason to reject the application for recognition and enforcement of the award
MISCELLANEOUS CIVIL CASE NO. 001 OF 2020
CYRUS NYORI NDUNGU MBUGUA Vs. CIC GENERAL INSURANCE LIMITED
The Judge adopted a very narrow/strict interpretation of the public policy ground for setting aside an arbitral award prescribed by Section 35(2) of the Arbitration Act in order to respect the integrity of arbitral proceedings.
In order to satisfy the existence of the public policy ground, a party would have to strictly prove that the manner in which the arbitral proceedings were conducted or the manner in which the decision was arrived at was contrary to public policy.
In this matter, the Respondent did not prove so and thus, their Application was dismissed. The bone of contention ended up being in respect of the merits of the award, of which the court ought not to intervene as was held in the case of Nyutu Agrovet vs Airtel Network Limited and Others (2019) eKLR and Cape Holdings Ltd vs Synergy Industrial Credits Ltd. (2016) eKLR.
Section 35(2) of the Arbitration Act sets out the conditions under which an Arbitral Award may be set aside.
The case of Christ of All Nations vs Apollo Insurance Co. Limited is the landmark precedent regarding the public policy ground for setting aside an arbitral award.
It is NOT the role of the court to review and/or sit on appeal over the decision of an Arbitrator. This limit is prescribed by Section 35 of the Arbitration Act. The leading precedent is Nyutu Agrovet vs Airtel Network Limited and Others.
DIOCESAN SYNOD OF MOUNT KENYA EAST Vs. LOG ASSOCIATES LIMITED AND PETER KIMANI AND 2 OTHERS
In allowing the application to recognize and enforce the Arbitral Award, the Court stated that it did not find the ground of misjoinder of parties or jurisdiction of the Arbitrator to be valid grounds to refuse the enforcement of the award. Moreover, these issues ought to have been raised before the Arbitrator at the earliest stage and not in the first instance before the Court as the Respondents have done as per Sections 17(2) and (3) of the Arbitration Act.
The Court observed that since the 1st Respondent chose not to participate in arbitral proceedings despite being served with the claim and the Arbitrator duly noting that the 2nd, 3rd and 4th Respondents had not been served, determined the claim as between the Applicant and the 1st Respondent. Hence, the decision specifically addressed the 1st Respondent as opposed to all Respondents.
On the contention by the Respondents that the Arbitrator could only address issues relating to interpretation, rights, obligations and or implementation of any or more of the provisions of the lease, the Court disagreed with this guided by the opening line of clause 11 of the Lease, “all questions hereinafter” . The court opined that the phrase gives the parties and the arbitrator a wide jurisdiction to deal with disputes arising from the Lease.
JUDITH TABITHA KIMANI AND NANCY WADIA KABAKI Vs. DANIEL GITAU KURIA
WATER CONSERVATION AND PIPELINE CORPORATION Vs. RUNJI & PARTNERS CONSULTING ENGINEERS AND PLANNERS LIMITED
ASSA ABLOY (EA) LIMITED Vs. TOP SECURITY SYSTEMS LIMITED