Broadway Trust Ltd v China Young Tai Engineering Co. Ltd
The bottom line
#If you don't challenge an arbitration award within 90 days in Kenya, the other side can enforce it as a court order without a hearing.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the Court of Appeal over appeals on enforcement of arbitral awards
The Court had jurisdiction because the appeal challenged the enforcement process under the Civil Procedure Code, not the arbitral award; Anne Mumbi Hinga and Nyutu Agrovet were distinguishable.
The appellant never sought to set aside or vary the award within the 90-day period under section 35(3), so the award became final and binding under section 32A. Its complaint was confined to the procedure used to make the award a decree, a matter governed by the Civil Procedure Code and Rules, from which an appeal lies as of right once a party is aggrieved by the High Court's determination.
Competence of the appeal
The appeal was competent; the notice of appeal and certified order were on record, and in any event the respondent could not raise competence objections without invoking rule 84 or seeking leave under rule 104(b).
The notice of appeal was on the record and a certified copy of the order was in the supplementary record filed on 20th February 2013. Even if the objections were valid, the respondent never moved the court under rule 84 nor sought leave under rule 104(b), so the objections could not be entertained. Salama Beach Hotel was distinguishable because there a rule 84 application was actually before the court.
Whether service of a draft decree for approval before extraction was mandatory
The ex parte enforcement route under rule 6 of the Arbitration Rules was properly available, so the High Court did not err in dismissing the application to set aside the decree.
Rule 5 was satisfied by service of the notice of filing of the award on the appellant's advocates. The appellant filed no application to set aside the award under section 35, and rule 6 expressly entitled the filing party to apply ex parte by summons for leave to enforce the award as a decree. The enforcement proceedings were therefore regular.
Whether the appellant was denied the right to be heard
No denial of natural justice; the ex parte procedure was sanctioned by rule 6 of the Arbitration Rules given the absence of a section 35 application.
The right to be heard in enforcement of an arbitral award is conditioned by the Arbitration Act and Rules: once the 90-day window for a section 35 application lapsed, the legislature's policy of minimal court intervention in arbitration permitted ex parte enforcement. The appellant's remedy lay in challenging the award timeously, which it did not do.
Legal principles established
#- Where no application to set aside an arbitral award has been made under section 35 of the Arbitration Act, the party filing the award may apply ex parte for leave to enforce it as a decree under rule 6 of the Arbitration Rules, 1997.
- An appeal lies to the Court of Appeal against a High Court decision on enforcement of an arbitral award as a decree where the challenge is to the enforcement process under the Civil Procedure Code, not to the award itself; such an appeal is outside section 39 of the Arbitration Act.
- A respondent who fails to apply under rule 84 of the Court of Appeal Rules to strike out an appeal cannot raise competence objections without leave under rule 104(b).
Court orders
#- 1.Appeal dismissed in its entirety
- 2.Costs of the appeal to the respondent
- On appeal from
- High Court of Kenya
- HCMC No. 846 of 2010
- Jurisdiction invoked
- Appeal as of right under Order 43 of the Civil Procedure Rules (leave unnecessary), the appeal challenging the High Court's exercise of powers under the Civil Procedure Code in enforcement of an arbitral award, not an appeal under section 39 of the Arbitration Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Broadway Trust Ltd v China Young Tai Engineering Co. Ltd", Case Analysis (2018). Civil Appeal No. 291 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/885/eng@2018-01-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.