Jaribu Credit Traders Limited & 2 others v Blue Limited [2013] KECA 361 (KLR)
The bottom line
#Kenya's Court of Appeal refused to halt enforcement of an arbitral award because the applicants failed to show they had any arguable appeal.
What this practically means
#Executive summary
#Key legal issues
#Whether the court has jurisdiction to entertain the intended appeal notwithstanding Section 32A of the Arbitration Act
The objection failed because the applicants' application to set aside the award was brought under Section 35, bringing it within the recourse permitted by the Act
Section 32A makes an award final and binding with no recourse other than as provided by the Act. Section 35 permits recourse to the High Court, including where an award conflicts with public policy. Since the applicants brought themselves within Section 35 and obtained leave to appeal, an appeal lies. Anne Mumbi Hinga is distinguishable because in that case the applicant had not brought herself within Section 35.
Whether the applicants demonstrated an arguable appeal for purposes of Rule 5(2)(b)
The applicants failed to establish an arguable appeal; the grounds were bare assertions hotly contested by the respondent
The applicants did not file a draft memorandum of appeal and relied only on the third applicant's affidavit. On the limitation issue, the affidavit evidence was a bare assertion not corroborated by the advocates who received the award. On public policy, the applicants did no better than before the High Court, where they merely threw the issue at the court, and their pleadings in HCCC No. 882 of 2009 acknowledged the award.
Whether the arbitral award was contrary to public policy in Kenya
The court's provisional view was that the award was not contrary to public policy, but the issue remained for the hearing of the appeal
The court referred to its decision in Kenya Shell Ltd v Kobil Petroleum Ltd on the circumstances in which an award may be set aside for contravening public policy. While expressing its considered view that the award was not contrary to public policy, the court expressly reserved the matter as one to be canvassed at the hearing of the appeal, since this was only an interlocutory stay application.
Legal principles established
#- An appeal may lie to the Court of Appeal against a High Court decision on an application to set aside an arbitral award under Section 35 of the Arbitration Act, notwithstanding the finality of awards under Section 32A
- A party resisting setting aside of an award on the basis of alleged misapplication of law cannot succeed where it willingly submitted to and participated in the arbitration without objection as to the applicable law
Court orders
#- 1.The Notice of Motion dated 8th September, 2011 is dismissed
- 2.Costs of the application awarded to the respondent
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C Misc. Appl. No. 122 of 2010 & H.C.C.C. No. 151 of 2010 (Consolidated) (Formerly H.C.C.C. No. 790 of 2009)
- Jurisdiction invoked
- Rule 5(2)(b) of the Rules of the Court (application for stay pending intended appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kenya Revenue Authority v Said & 4 others (Environment & Land Case 101 of 2018) [2024] KEELC 6145 (KLR)[2024] KEELC 6145 (KLR)25 Sept 2024
Cite this brief
#Cite this brief
Caselaw, "Jaribu Credit Traders Limited & 2 others v Blue Limited [2013] KECA 361 (KLR)", Case Analysis (2013). Civil Application No. 217 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/361/eng@2013-03-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.