Talewa Road Contractors Limited v Kenya National Highways Authority (Civil Appeal 246 of 2019) [2021] KECA 276 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed you cannot appeal an arbitration award unless you first signed a proper written agreement saying you could.
What this practically means
#Executive summary
#Key legal issues
#Whether an appeal lay against the arbitral award
No right of appeal existed. The arbitration clause 67.3 provided for final settlement of disputes by arbitration and made no provision for an appeal; the purported reservation of a right of appeal in the arbitrator's letter did not meet the formal requirements of section 4 of the Arbitration Act.
Section 4 of the Arbitration Act prescribes the forms of a valid arbitration agreement: a document signed by both parties, an exchange of letters or written communications recording the agreement, an exchange of statements of claim and defence, or an arbitration clause in a contract. The arbitrator's letter of 3rd July 2015 recording the parties' reservation of a right of appeal did not fall within any of these forms. The only operative dispute resolution mechanism was clause 67.3 of the contract, which made arbitration the final settlement. Consistent with Dock Workers Union v Messina, parties cannot denounce the mechanism they freely chose.
The fate of the respondent's Rule 84 application
The application was lodged within the 30-day window of Rule 84 and was merited because no appeal lay, so the record of appeal was struck out.
Rule 84 permits a person affected by an appeal to apply to strike out the notice or appeal on the ground that no appeal lies. The application, lodged on 28th June 2019 against a record of appeal filed on 6th June 2019, was within the prescribed time. Since the Court found that no right of appeal existed against the arbitral award, the appeal was struck out with costs to the respondent.
Legal principles established
#- A valid agreement to appeal an arbitral award must conform to the forms of an arbitration agreement prescribed by section 4 of the Arbitration Act, including being in writing signed by the parties; a mere letter or oral reservation before the arbitrator does not suffice.
- Parties are bound by the dispute resolution mechanism they freely choose; where the arbitration clause makes the award final, no appeal lies to the High Court or the Court of Appeal absent a valid agreement to appeal.
Court orders
#- 1.The notice of motion dated 26th June 2019 is allowed
- 2.The record of appeal dated 4th June 2019 is struck out
- 3.The respondent shall have the costs of both the motion and the stricken appeal
- On appeal from
- High Court of Kenya
- Not stated in the judgment
- Jurisdiction invoked
- Appeal against a ruling of the High Court; no specific constitutional or statutory jurisdictional provision is invoked in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- AMREF International University & another v Mwitari & 2 others (Miscellaneous Application E081 & E072 of 2025 (Consolidated)) [2025] KEELRC 3031 (KLR)[2025] KEELRC 3031 (KLR)31 Oct 2025applied
Cite this brief
#Cite this brief
Caselaw, "Talewa Road Contractors Limited v Kenya National Highways Authority (Civil Appeal 246 of 2019) [2021] KECA 276 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/276/eng@2021-11-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.