Case No.
MISC/E465/2019
Parties
MATRIX BUSINESS CONSULTANTS LIMITED, PEMOCOM COMMUNICATIONS LIMITED, SANIWALO COMMUNICATIONS LIMITED, ROZACOM COMMUNICATIONS LIMITED, DACO COMMUNICATIONS LIMITED Vs. SAFARICOM LIMITED
Rationale & Relevance
The ratio decidendi applied by the Judge is that the grounds for setting aside an arbitral award should be interpreted narrowly, with specific emphasis on the public policy ground. According to the Judge, Applicants must be put to strict proof in order to satisfy any of the grounds. In the absence of that, then the finality of an arbitral awards should be respected and courts should not interfere.
Section 35 of the Arbitration Act 1995 speaks to the finality of Arbitral Awards.
The decision(s) arrived upon by an Arbitral Tribunal are final and binding. Parties who forward a dispute to an arbitration ought to anticipate the final and binding nature of arbitral awards.
The public policy ground for setting aside an Arbitral Awards ought to be interpreted narrowly(strictly) according to the current jurisprudence.
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Case No.
MISC/468/2019
Parties
EPCO BUILDERS LIMITED Vs. SOUTH DEVELOPMENT COMPANY LIMITED
Rationale & Relevance
In determining the issue, the Court stated that the import of Section 34 of the Arbitration Act is that it allows any party to seek correction or clarification of an award as long as the clarification is sought within the time stipulated under the section upon notice being given to the other party.
The court also observed that the statute bar of filing setting aside application after 3 months is indeed a legal requirement. It however noted that for this particular case, it is important to determine the statute-bar at the hearing of the application on the application of Sections 34 and 35 of the Arbitration Act to the instant case.
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Case No.
HCOMMISC/E596/2019
Parties
NANDA PROPERTIES LIMITED Vs. AMREEK SINGH MUDHER, NILESH JAYANTILAL KOTEDIA
Rationale & Relevance
The Judge arrived at this ruling by adopting a narrow interpretation of Section 35 of the Arbitration Act regarding the setting aside of an arbitral award. According to the court, the Respondent did not provide any sufficient grounds to satisfy the requirements of Section 35 of the Arbitration Act.
Section 37 of the Arbitration Act strictly relates to international/foreign arbitral awards. Parties seeking to set aside a domestic award cannot rely on it.
Section 10 of the Arbitration Act provides that no court shall intervene in matters governed by the Arbitration Act.
For an arbitral award to be adopted as an order/judgment/decree of the court, the requirements under Section 36 of the Arbitration Act must be satisfied i.e., furnishing of the original arbitral award or a duly certified copy, and the original arbitration agreement or a duly certified copy of it.
Courts narrowly interpret the public policy ground for setting aside an arbitral award present in Section 35 of the Arbitration Act.
It is not the role of the court to review and/or sit on appeal over the decision of an arbitrator. The leading precedent for this perspective is Nyutu Agrovet v Airtel Network Limited & Others [2019] eKLR.
Arbitration clauses are deemed to include any and all disputes between parties to an arbitration unless expressly excluded
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Case No.
MISC/E453/2019
Parties
CM CONSTRUCTION (E.A) LIMITED Vs. NINE SISTERS LIMITED, COOPERATIVE BANK OF KENYA LIMITED (GARNISHEE)
Rationale & Relevance
The Court’s finding that justice will require the Applicant and the Judgment Detor to share the Garnishee’s costs equally was guided by the case of Republic v Medical Practitioners and Dentists Board and 3 others Exparte Kenya Hospital Association (2014) Eklr. The Court stated that the Garnishee Proceedings could have been averted if the Judgment Debtor settled the decretal sum in time as agreed. In addition to this, the Applicant was obligated to confirm particulars of the Judgment Debtor’s accounts before initiating the garnishee proceedings.
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Case No.
MISC/E515/2019
Parties
HONDA MOTORCYCLE LIMITED Vs. GERICK KENYA LIMITED
Rationale & Relevance
In determination of this matter, the Deputy Registrar was informed by the case of Transworld Safaris Limited vs Eagle Aviation Limited and 3 Others [2012] where the Court held that from the reading of Section 32B of the Arbitration Act, it is clear that the Section has vested the Arbitral Tribunal with the exclusive jurisdiction to determine its costs and expenses and no other body is to make such a determination as this would be acting beyond jurisdiction.
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Case No.
MISC/E465/2019
Parties
BRITAM GENERAL INSURANCE COMPANY Vs. WILSON CHEGE & AASIF KARIM (ARBITRATOR)
Rationale & Relevance
In determining the issue, the Court stated that an arbitrator’s jurisdiction flows from an arbitration agreement and subject to the Arbitration Act. No jurisdiction is given to the Arbitral Tribunal as a matter of right or inherence or by statute. If the parties voluntarily contract and limit the period within which to refer their dispute to arbitration like in this case, the arbitrator has no jurisdiction to extend the period. Therefore, by entertaining the dispute, the arbitrator exceeded his jurisdiction. Lastly, the limitation of time as agreed by parties, like all other consensual agreements, cannot be said to offend the provisions of the Limitation of Actions Act nor can the Court re-write the parties’ contract.
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Case No.
MISC/E287/2019
Parties
SIMON SAILI MALONZA Vs. GRASPA INTERNATIONAL LIMITED
Rationale & Relevance
In ascertaining the costs payable pursuant to the decree of the Court dated 11th June, 2020, the same was ascertained and certified to the extent of the total amount specified in Schedule VI of the Remuneration of Advocates Order 2014.
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Case No.
MISC/455/2019
Parties
RUGSAN LAND DEVELOPMENT LIMITED Vs. FAITH AGNES MAUMOH
Rationale & Relevance
Section 32B of the Arbitration Act determines costs in relation to arbitral proceedings, and not the Advocates’ Remuneration Order. This means that costs and expenses apportioned ought to be determined by the Arbitral Tribunal pursuant to the discretionary power granted to them by the said Section.
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Case No.
MISC/E465/2019
Parties
MATRIX BUSINESS CONSULTANTS LIMITED, PEMOCOM COMMUNICATIONS LIMITED, SANIWALO COMMUNICATIONS LIMITED, ROZACOM COMMUNICATIONS LIMITED, DACO COMMUNICATIONS LIMITED Vs. SAFARICOM LIMITED
Rationale & Relevance
The ratio decidendi applied by the Judge is that the grounds for setting aside an arbitral award should be interpreted narrowly, with specific emphasis on the public policy ground. According to the Judge, Applicants must be put to strict proof in order to satisfy any of the grounds. In the absence of that, then the finality of an arbitral awards should be respected and courts should not interfere.
Section 35 of the Arbitration Act 1995 speaks to the finality of Arbitral Awards.
The decision(s) arrived upon by an Arbitral Tribunal are final and binding. Parties who forward a dispute to an arbitration ought to anticipate the final and binding nature of arbitral awards.
The public policy ground for setting aside an Arbitral Awards ought to be interpreted narrowly(strictly) according to the current jurisprudence.
Links
Case No.
MISC/468/2019
Parties
EPCO BUILDERS LIMITED Vs. SOUTH DEVELOPMENT COMPANY LIMITED
Rationale & Relevance
In determining the issue, the Court stated that the import of Section 34 of the Arbitration Act is that it allows any party to seek correction or clarification of an award as long as the clarification is sought within the time stipulated under the section upon notice being given to the other party.
The court also observed that the statute bar of filing setting aside application after 3 months is indeed a legal requirement. It however noted that for this particular case, it is important to determine the statute-bar at the hearing of the application on the application of Sections 34 and 35 of the Arbitration Act to the instant case.
