Dhl Excel Supply Chain Kenya Limited v Tilton Investments Limited
The bottom line
#Kenya's Court of Appeal confirmed you can appeal High Court arbitration decisions unless the law expressly says otherwise.
What this practically means
#Executive summary
#Key legal issues
#Right of appeal against a High Court decision under section 35 of the Arbitration Act
The applicant has a right of appeal. The right of appeal to the Court of Appeal now flows from the Constitution under Article 164(3) and can only be limited by express statutory provision; section 35's silence does not bar an appeal, and section 39(3) does not exhaust the routes of appeal under the Act.
The court traced the evolution from the former Constitution, under which a right of appeal had to be conferred by statute, to Article 164(3)(a) of the 2010 Constitution which confers jurisdiction to hear appeals from the High Court without reference to enabling legislation. Citing Kalpana Rawal, the court held that a constitutional right of appeal can only be limited by express statutory provision. Section 35 is silent on appeals, and silence does not restrict; only provisions expressly barring appeal, such as section 12(6) and 12(8), do so.
Whether leave to appeal should be granted
Leave is granted. The intended appeal raises issues warranting the court's consideration - whether parties are bound by their pleadings in arbitral proceedings and whether an arbitrator can grant both the main and the alternative prayer.
Applying Machira t/a Machira & Company Advocates, the court noted leave is a matter of judicial discretion and will be refused only where there are no realistic prospects of success. Without delving into the merits, the court found that the question whether an arbitrator may grant both the main and alternative prayers - thereby exceeding his mandate and breaching the rule that parties are bound by their pleadings - is a point of general importance meriting serious judicial consideration.
Legal principles established
#- Since the Constitution of Kenya, 2010, the right of appeal to the Court of Appeal from the High Court flows from the Constitution itself and can only be denied, limited or restricted by express statutory provision; the silence of a statute such as section 35 of the Arbitration Act does not bar an appeal.
- Where the Arbitration Act permits the High Court to intervene, its decision is appealable to the Court of Appeal unless the Act expressly bars an appeal, as it does in provisions such as section 12(6).
- The right of appeal under section 39(3) of the Arbitration Act is not the only route to the Court of Appeal; it is restricted to section 39(2) decisions and does not govern appeals under all provisions of the Act.
- Leave to appeal will only be refused where the applicant has no realistic prospects of success; leave may also be granted where the appeal raises a novel point or one the law requires clarifying or that should be examined in the public interest.
Court orders
#- 1.The application is allowed
- 2.Leave is granted to the applicant to appeal against the ruling of the High Court dated 21st July 2015
- 3.Costs of the application shall abide by the outcome of the intended appeal
- On appeal from
- High Court of Kenya at Nairobi
- H.C. Misc. Appl. No. 507 of 2014
- Jurisdiction invoked
- Rules 39(b), 40(b), 42(1), 43(3) of the Court of Appeal Rules and section 39(3)(b) of the Arbitration Act; right of appeal anchored on Article 164(3) of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dhl Excel Supply Chain Kenya Limited v Tilton Investments Limited", Case Analysis (2017). Civil Application No. Nai. 302 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/534/eng@2017-05-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.