Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Appeal No. 100 of 1995

KISUMUWALLA OIL INDUSTRIES LTD vs PAN ASIATIC COMMODITIES PTE LIMITED & ANOTHER [1997] KECA 219 (KLR)

Court of Appeal of Kenya
14 February 1997
ROR. S. C. OmoloPAPallBOBosire
495 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal confirmed that arbitration clauses in contracts must still follow Kenya's own arbitration law, not just English precedent.

What this practically means

#

Executive summary

#
The Court of Appeal at Mombasa (Omolo, Pall, JJ.A. and Bosire, Ag. J.A.) dismissed this appeal against an order of the High Court of Kenya at Mombasa (Mbaluto, J.) dated 25 May 1993 in H.C.C.C. No. 84 of 1993. The appellant's sole substantial contention was that the Court's own recent, unreported decision in Corporate Insurance Company v Loise Wanjiru Wachira (Civil Appeal No. 151 of 1995) was erroneous and should be departed from. That decision had held that Scott v Avery arbitration clauses, though framed in wide and mandatory terms, remain subject to Section 6 of the then Arbitration Act. The Court unanimously declined the invitation to overturn its own reserved and well-considered precedent. It reasoned that while in England Scott v Avery clauses enjoy long-standing common law status alterable only by direct legislation, in Kenya common law applies only subject to statutes enacted by the National Assembly and to local circumstances. Kenyan courts are not obliged to apply English common law wholesale; foreign commercial decisions are given their due place of honour but will not be slavishly followed without regard to Kenyan statutes and circumstances. The Court affirmed that the Corporate Insurance Company case was correctly decided, dismissed the appeal with costs, and delivered its judgment at Nairobi on 14 February 1997.

Key legal issues

#
01

Whether the Court should depart from its own recent precedent in Corporate Insurance Company v Loise Wanjiru Wachira on the effect of Scott v Avery arbitration clauses

Holding

The Court declined to depart from its precedent, affirming that Scott v Avery clauses are subject to Section 6 of the then Arbitration Act notwithstanding their wide and mandatory terms.

Reasoning

The earlier decision was a reserved and well-considered verdict of the Court. In England, Scott v Avery clauses have long-standing common law status alterable only by Parliament; in Kenya, common law applies only subject to statutes passed by the National Assembly and local circumstances. The Court will honour foreign commercial decisions but will not slavishly apply them without regard to Kenyan statutes and circumstances. The appeal's only substantial point therefore failed.

p. 2

Legal principles established

#
  • Scott v Avery arbitration clauses, however widely and mandatorily framed, are subject to the provisions of Section 6 of the (then) Arbitration Act.
  • Kenyan courts are not obliged to apply English common law wholesale; foreign decisions receive due respect but must yield to Kenyan statutes and local circumstances.

Court orders

#
  1. 1.Appeal dismissed with costs
On appeal from
High Court of Kenya at Mombasa
H.C.C.C. No. 84 of 1993
Jurisdiction invoked
First appeal to the Court of Appeal under the then-applicable appellate framework (not expressly stated in the judgment text)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "KISUMUWALLA OIL INDUSTRIES LTD vs PAN ASIATIC COMMODITIES PTE LIMITED & ANOTHER [1997] KECA 219 (KLR)", Case Analysis (1997). Civil Appeal No. 100 of 1995. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/219/eng@1997-02-14

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.