RATIONALE
The Judge was of the school of thought that public policy must have a connotation of national interest in that, it cannot mean fairness and justice. According to the Judge, neither party demonstrated to the court how the decision by the Arbitrator and how the Claimant’s Application would negatively affect, impact or infringe the rights of 3rdparties and thus offend public policy. 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
