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Court of AppealDismissedCivil Appeal No. 92 of 2009· [2016] KECA 313 (KLR)

Kamconsult Limited v Telcom Kenya Limited & another [2016] KECA 313 (KLR)

Court of Appeal of Kenya
29 July 2016
AVAlnashir VisramHOH. M. OkwenguJMJ. Mohammed
2,580 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that High Court decisions on an arbitrator's jurisdiction are final and cannot be reviewed, reinforcing arbitration's finality.

What this practically means

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Executive summary

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Kamconsult Limited appealed against a ruling of the High Court (Ringera J) delivered on 11th December 2001 upholding a preliminary objection and dismissing its notice of motion seeking review of the High Court's earlier decision of 17th September 2001. The earlier decision, made under Section 17(6) of the Arbitration Act, 1995, had held that the appellant's claim before the arbitrator was statute-barred and that the arbitrator lacked jurisdiction. Section 17(7) of the Act barred an appeal against that decision, so the appellant sought review under Orders XLIV Rule 1 and XXI Rule 22 of the former Civil Procedure Rules, Sections 3A, 63e and 80 of the Civil Procedure Act, and Rule 11 of the Arbitration Rules. Before the Court of Appeal, counsel for the appellant relied chiefly on Abdi Rahman Shire v Thabiti Finance Co. Ltd, which had found that Ringera J applied the wrong law on acknowledgment of debts under Section 23(3) of the Limitation of Actions Act. The court held that the sole issue was whether the High Court could review its own Section 17(6) decision, and answered in the negative: the Arbitration Act makes no provision for review, Section 10 ousts any other intervention, Rule 11 imports only appropriate procedural rules and cannot override a substantive section, and the omission of review powers was deliberate to secure finality. The court also found the memorandum of appeal attempted to challenge the untouchable 17th September 2001 ruling through the back door, and noted the appellant's submission about the timing of Abdi Rahman Shire was false and misleading. The appeal was dismissed with costs.

Key legal issues

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01

Whether the High Court may review its own decision under Section 17(6) of the Arbitration Act

Holding

It may not; the Arbitration Act makes no provision for review of such decisions, and Section 10 bars intervention except as provided in the Act.

Reasoning

Section 17(7) makes the High Court's decision final and non-appealable. The motion sought review under Civil Procedure Rules provisions and Section 11 of the Arbitration Rules, but Rule 11 imports only appropriate procedural rules and cannot override Section 10 of the Act. Sections 3A, 63e and 80 of the Civil Procedure Act are equally inapplicable. The omission of review is deliberate, to provide finality to arbitration.

p. 5
02

Whether the appellant could, through the memorandum of appeal, challenge the 17th September 2001 ruling on the arbitrator's jurisdiction

Holding

It could not; leave had been granted only to appeal against the ruling of 11th December 2001, and Section 17(7) barred an appeal against the earlier decision.

Reasoning

The court found the memorandum of appeal was crafted to appear to challenge both rulings, amounting to an attempt to sneak in an appeal against the jurisdictional ruling through the back door. That decision was final under Section 17(7), and the Court of Appeal exercises only jurisdiction conferred by statute.

p. 4

Legal principles established

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  • The decision of the High Court under Section 17(6) of the Arbitration Act is final and cannot be appealed or reviewed; Section 10 of the Act ousts any other court intervention, and Civil Procedure Rules or provisions cannot import review jurisdiction.
  • A procedural rule cannot override a substantive statutory provision.
  • The omission of review powers in the Arbitration Act is a deliberate legislative choice to secure finality of arbitral proceedings.

Court orders

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  1. 1.Appeal dismissed with costs to the respondents
On appeal from
High Court of Kenya at Nairobi
HCCC 262 of 2001 (O.S)
Jurisdiction invoked
Appeal as of right from the High Court under the Court of Appeal's statutory appellate jurisdiction; appeal limited by Section 17(7) of the Arbitration Act, 1995

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kamconsult Limited v Telcom Kenya Limited & another [2016] KECA 313 (KLR)", Case Analysis (2016). Civil Appeal No. 92 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/313/eng@2016-07-29

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