Kimani Gachuhi & 1 other v Evangelical Mission For Africa & 1 other
The bottom line
#Kenya's Court of Appeal confirmed that High Court rulings setting aside arbitral awards can only be appealed in the rarest, clearest cases.
What this practically means
#Executive summary
#Key legal issues
#Whether the High Court's reliance on constitutional provisions (Articles 10 and 165(6)) in setting aside an arbitral award falls outside the grounds in Section 35 of the Arbitration Act
The court was persuaded that the High Court appeared to disregard the circumscribed grounds in Section 35 and assumed its own standards, raising an arguable point that falls within the narrow Nyutu window; leave to appeal was therefore granted.
The court, guided by Nyutu and Synergy, held that appeals from Section 35 determinations lie only where the High Court went beyond the statutory grounds. The learned Judge's invocation of Articles 165(6) and 10 of the Constitution as additional standards for setting aside the award suggested precisely such an excursion. The court eschewed making determinative findings, leaving that to the bench hearing the substantive appeal.
Whether leave to appeal should be granted in this application
Leave was granted; the appeal passes through the narrow window opened by the Supreme Court in Nyutu.
Applying the Nyutu and Synergy parameters without delving into the merits of the award, the court found the appellants' contention - that the High Court used extra-statutory constitutional grounds to set aside the award - sufficient to bring the appeal within the narrow and circumscribed jurisdiction, warranting leave for the substantive appeal to proceed.
Legal principles established
#- Not every High Court decision under Section 35 of the Arbitration Act is appealable; an intended appeal must be anchored within the four corners of Section 35, contending that the High Court went beyond the statutory grounds for interfering with an arbitral award.
- The only instance an appeal may lie from the High Court to the Court of Appeal on a Section 35 determination is where the High Court stepped outside the grounds in Section 35 and made a decision so grave and manifestly wrong that it closed the door of justice.
- Alleged breaches of the Constitution cannot be introduced into an application to set aside an arbitral award via Section 35 of the Arbitration Act.
Court orders
#- 1.Leave granted for the substantive appeal to proceed to hearing before the Court of Appeal
- 2.The appeal to be heard and determined by the Court of Appeal
- 3.Costs of the application to be in the appeal
- On appeal from
- High Court of Kenya at Nairobi
- Civil Application No. 479 of 2014 (in High Court Civil Case No. 569 of 2009)
- Jurisdiction invoked
- Leave to appeal from a High Court determination under Section 35 of the Arbitration Act, per the parameters set by the Supreme Court in Nyutu Agrovet v Airtel Networks Limited and Synergy Industrial Credit Limited v Cape Holdings Limited
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kimani Gachuhi & 1 other v Evangelical Mission For Africa & 1 other", Case Analysis (2021). Civil Appeal (application for leave to appeal) arising from High Court Civil Case No. 569 of 2009; Civil Application No. 479 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/339/eng@2021-12-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.