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.”
- 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.
SUMMARY- P.N. MASHRU LIMITED VS TOTAL KENYA LIMITED