Godson Sixty One School Limited v Symbion Kenya Limited

The Supreme Court in Nyutu Agrovet held that an appeal lies to the Court of Appeal against a section 35 decision only upon leave granted in exceptional cases, where the High Court made a decision so grave and manifestly wrong that it completely closed the door of justice. The appellant neither sought leave from the High Court nor this Court. The court also noted that under Synergy Industrial Credit, only decisions anchored on section 35 are appealable, and none of these appeals is so anchored.

Section 14(2) contemplates an arbitrator who is in office; the provision provides for removal from office, not after the arbitrator has become functus officio. Section 32A makes the award final and binding with no recourse other than as provided by the Act, and section 35 is the exclusive recourse against an award. Seeking to review a decision and substitute an order setting aside the award in a manner not contemplated by section 35 offended sections 10, 32A and 35 of the Act.

Kenyan law recognises two routes to arbitration: court-annexed arbitration under section 59 CPA and Order 46, with more extensive court involvement, and wholly consensual arbitration under the Arbitration Act. The present arbitration was consensual. Section 10 bars court intervention except as provided in the Act, and by agreeing to arbitration parties waive rights of appeal or review beyond section 35. The court agreed with Mwongo, J. that the CPA and CPR were improperly invoked.

The only ground approaching a process failure was the Article 50 complaint, but the record showed the appellant was heard at every stage. The court cautioned against disguising ordinary grounds as constitutional issues, holding that the judges merely upheld the Act's provisions after according both parties a hearing. The appeals also did not fall under section 39(3)(b), as the High Court exercised jurisdiction under sections 14(5) and (6), 35, 36 and 37, not section 39(1) and (2).