Kenyatta International Convention Center v Congress Rental South Africa

Applying the definitions in sections 3(2)(d) and 3(3) of the Arbitration Act and noting the contract was governed by Kenyan law with the seat in Nairobi, the Court held the arbitration domestic. However, since the High Court application was brought under section 35(2) and the contract granted no right of appeal, section 39(3)(b) could not found leave. The application was incompetent.

The applicant never agreed with the respondent that questions of law could go to the High Court under section 39(1)/(2), and the contract contained no appeal clause. Since the High Court was exercising section 35(2) jurisdiction, the leave application built on section 39(3)(b) was misconceived and incompetent. The Court reached this conclusion even without deciding the alternative Nyutu threshold.

Following Nyutu, breaches of the Constitution are governed by Articles 165(3) and 258 and cannot be introduced by litigational ingenuity into a section 35 application. Since the applicant's grounds before the High Court and before the Court of Appeal were premised on alleged breaches of Articles 10, 27 and 50, those grounds could not stand as a basis for leave.

Relying on Hermanus Philipus Steyn and Nyutu, the Court held that the applicant's State-corporation status, macroeconomic budget concerns and the call to monitor arbitration do not raise substantial points of law. Further, per Nyutu, 'substantially affecting the parties' must be tied to something more, since every court decision affects parties.

The claim that the arbitrator dealt with a dispute outside the terms of reference is a section 35 ground. Under Nyutu and Synergy Industrial, only where the High Court went beyond the section 35 grounds and made a grave, manifestly wrong decision can the Court of Appeal intervene. The learned judge did not step outside section 35; the applicant was merely attacking the merits of the award.