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

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.