Memphis Limited v Kenya Ports Authority (Civil Application 39 of 2021) [2022] KECA 105 (KLR)

The Court read Sections 39(1), (2) and (3) together. Agreement of the parties is a condition precedent for invoking Section 39(1). Once the High Court determines such a matter, an appeal to the Court of Appeal lies only if the parties so agreed prior to the award, or if leave is granted under Section 39(3)(b). The Court found it contradictory for the applicant to deny the existence of an agreement to appeal while simultaneously seeking leave under Section 39(3)(b).

Borrowing from Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone, the Court held that the intending appellant must show that the point of law is substantial, broad-based, transcends the circumstances of the particular case, and carries elements of real public interest. Mere difficulty or arguability of the questions of law is insufficient; the applicant bore the burden of demonstrating general importance and did not discharge it.

The Court examined the two 2019 rulings in Talewa Road Contractors and the High Court and Court of Appeal decisions in KICC v Greenstar and found that none addressed whether a dispute resolution clause can be altered through arbitrators' orders for directions. Counsel for the applicant failed to demonstrate in what respects the decisions conflicted, undermining the claim that leave was needed to resolve discordant authority.

Relying on Synergy Industrial Credit v Cape Holdings, the Court held that it must jealously guard the purpose and essence of arbitration under Article 159(3)(d) so that floodgates are not opened to appellate access. Since the appeal against the award remained pending before the lower court, granting leave would unduly protract the matter at the expense of substantive and expeditious disposal.