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Court of AppealStruck OutCivil Appeal No. 228 of 2014· [2017] KECA 676 (KLR)

Micro-House Technologies Limited v Co-operative College of Kenya [2017] KECA 676 (KLR)

Court of Appeal
10 March 2017
1,024 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal struck out an appeal against a decision setting aside an arbitral award because the company never got the special permission Kenyan law requires.

What this practically means

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Executive summary

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The Court of Appeal (Musinga, Gatembu Kairu and Murgor, JJ.A.) struck out this appeal for want of jurisdiction. An arbitrator, Mr. Dan Ameyo, published an award in favour of Micro-House Technologies Limited on 23rd January 2012. Micro-House sought to adopt the award as a judgment of the High Court while the Co-operative College of Kenya moved to set it aside. By a ruling dated 15th November 2012 in Misc. Application No. 220 of 2012, Mutava, J. set aside the award; leave to appeal was granted orally by the High Court and this appeal followed. The respondent objected that the Court had no jurisdiction: the parties had not agreed prior to the award that an appeal would lie to the Court of Appeal, and no leave had been sought from or granted by that Court under section 39(3)(b) of the Arbitration Act. The appellant relied on section 75 of the Civil Procedure Act and Order 43 of the Civil Procedure Rules, contending that the High Court's leave sufficed. The Court identified undisputed facts - no prior agreement, no application to the Court of Appeal for leave, and no leave granted - and answered the jurisdictional question in the negative. Following its own binding five-judge decision in Nyutu Agrovet Limited v Airtel Networks Limited, it held that no right of appeal lies from a High Court decision setting aside an arbitral award save under section 39(3) of the Arbitration Act, and that neither section 75(1) of the Civil Procedure Act nor Article 164(3) of the Constitution can found such an appeal. The appeal was struck out with costs to the respondent.

Key legal issues

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01

Jurisdiction of the Court of Appeal to hear an appeal from an order setting aside an arbitral award without leave under section 39(3)(b) of the Arbitration Act

Holding

The Court lacks jurisdiction. The parties had not agreed that an appeal would lie, and no application for leave on a point of law of general importance was made to or granted by the Court of Appeal, so no right of appeal existed.

Reasoning

Section 39(3) of the Arbitration Act limits appeals to the Court of Appeal to two situations: prior agreement of the parties that an appeal shall lie, or leave granted by the Court of Appeal on a point of law of general importance substantially affecting the parties' rights. Neither condition was met. The Court followed the binding five-judge decision in Nyutu Agrovet v Airtel Networks, which held that no right of appeal under section 39(3) arises from a High Court decision setting aside an arbitral award, and that neither section 75(1) of the Civil Procedure Act nor Article 164(3) of the Constitution can found such an appeal. A right of appeal being statutory cannot be inferred.

p. 2

Legal principles established

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  • An appeal to the Court of Appeal from a decision of the High Court under section 35 of the Arbitration Act lies only under section 39(3) of that Act - where the parties so agreed before delivery of the award, or where the Court of Appeal grants leave on a point of law of general importance; no such right of appeal can be founded on section 75(1) of the Civil Procedure Act or Article 164(3) of the Constitution.
  • A right of appeal is conferred by statute and cannot be inferred; leave to appeal under section 39(3)(b) of the Arbitration Act must be sought from and granted by the Court of Appeal itself.

Court orders

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  1. 1.The appeal is struck out with costs to the respondent

Authorities

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Legislation

  • Arbitration Actsection 10
  • Arbitration Actsection 35
  • Arbitration Actsection 39(3)
  • Civil Procedure Actsection 75(1)
  • Civil Procedure RulesOrder 43
  • Constitution of Kenya, 2010Article 164(3)

Cases cited (2)

  • Owners of Motor Vessel “Lillian’s” v Caltex Oil (Kenya) Ltd
    [1989] KLR 1
  • Nyutu Agrovet Limited v Airtel Networks Limited
    [2015] eKLR
On appeal from
High Court of Kenya at Nairobi
Misc. Application No. 220 of 2012
Jurisdiction invoked
Appeal purportedly brought under section 39(3) of the Arbitration Act, section 75(1) of the Civil Procedure Act and Article 164(3) of the Constitution; the Court held it had no jurisdiction

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, "Micro-House Technologies Limited v Co-operative College of Kenya [2017] KECA 676 (KLR)", Case Analysis (2017). Civil Appeal No. 228 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/676/eng@2017-03-10

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