Micro-House Technologies Limited v Co-operative College of Kenya [2017] KECA 676 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#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
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.
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.
Legal principles established
#- 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
#- 1.The appeal is struck out with costs to the respondent
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.