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.
- 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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