Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedNot stated in the judgment

Talewa Road Contractors Limited v Kenya National Highways Authority (Civil Appeal 246 of 2019) [2021] KECA 276 (KLR)

Court of Appeal of Kenya
5 November 2021
2,351 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

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

#
Talewa Road Contractors Limited appealed against a High Court ruling (J. A. Makau, J.) striking out its application for leave to file its memorandum of appeal out of time and allowing the Kenya National Highways Authority's application to dismiss the appeal. The dispute arose from a contract for the periodic maintenance of the Mombasa-Miritini Road, which contained an arbitration clause (clause 67.3) providing for final settlement of disputes by arbitration. An arbitrator published his final award on 22nd March 2018. The appellant relied on a letter dated 3rd July 2015 from the arbitrator recording that the parties had reserved the right of appeal on points of law under section 39 of the Arbitration Act, contending that a valid agreement to appeal existed and that extension of time under section 79G of the Civil Procedure Act should have been granted. The respondent moved under Rule 84 of the Court of Appeal Rules to strike out the appeal on the ground that no appeal lay. The Court of Appeal first disposed of the strike-out motion, finding it was filed within the 30-day window of Rule 84. Agreeing with the learned Judge, the Court held that the arbitrator's letter did not constitute an arbitration agreement within the meaning of section 4 of the Arbitration Act, which requires a signed document, an exchange of letters or written communications, or an exchange of statements of claim and defence. Following its own decision in Dock Workers Union v Messina Kenya Limited, the Court held that parties are bound by their freely chosen dispute resolution mechanism. The appeal was dismissed, the record of appeal struck out, and costs awarded to the respondent.

Key legal issues

#
01

Whether an appeal lay against the arbitral award

Holding

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.

Reasoning

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.

p. 5
02

The fate of the respondent's Rule 84 application

Holding

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.

Reasoning

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.

p. 3

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. 1.The notice of motion dated 26th June 2019 is allowed
  2. 2.The record of appeal dated 4th June 2019 is struck out
  3. 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.

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.