Vipingo Ridge Limited v Kikenni Properties Limited & another (Civil Appeal E008 of 2022) [2023] KECA 1277 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that appeals from arbitration rulings need special permission first, and dismissed Vipingo Ridge's challenge on that basis.
What this practically means
#Executive summary
#Key legal issues
#Whether an appeal under Section 35 of the Arbitration Act requires leave of the Court of Appeal
The appeal did not lie, having been instituted without leave; the Court struck at the competence of the appeal on this basis, consistent with its prior decisions.
The Supreme Court in Nyutu Agrovet and Synergy Industrial Credit recognised only a residual, exceptional jurisdiction to hear appeals from Section 35 decisions and anticipated a leave mechanism. Parliament has not legislated one, but this Court has held in Narok County Government v SEC & M Company Limited and Advertising Company Limited v Kenya Post Office Savings Bank that leave is required and that an appeal commenced without leave does not lie. The present appeal was instituted without any leave sought or granted, so it was incompetent.
Whether the High Court, in setting aside the interim award, acted within the narrow parameters of Section 35 of the Arbitration Act
Even on the merits the appeal would fail: the Judge determined the application on the basis that the interim award deprived the respondents of the constitutional right to a fair hearing, which is a public policy consideration under Section 35.
The learned Judge expressly recognised that a Section 35 application is not an appeal, yet found that the arbitrator's insistence on physical attendance, in the context of the Covid-19 pandemic and a witness undergoing cancer treatment, violated the right to fair hearing under Article 50 of the Constitution. A Section 35 court may interfere on public policy grounds. The appellant demonstrated no misdirection in law, misapprehension of facts, or plainly wrong decision that would justify appellate interference.
Legal principles established
#- An appeal to the Court of Appeal from a High Court decision made under Section 35 of the Arbitration Act can only lie with leave of the Court; an appeal instituted without leave does not lie and may be struck out.
- Not every decision of the High Court under Section 35 of the Arbitration Act is appealable; an intended appeal must be anchored within the grounds in Section 35, contending that the High Court went beyond them.
- An appellate court will not interfere with a lower court's decision absent demonstration of misdirection in law, misapprehension of the facts, taking into account irrelevant considerations, failing to take into account relevant considerations, or that the decision is plainly wrong.
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal awarded to the respondents
- On appeal from
- High Court at Malindi
- Not stated in the judgment
- Jurisdiction invoked
- Residual appellate jurisdiction over High Court decisions under Section 35 of the Arbitration Act, as recognised in Nyutu Agrovet Limited v Airtel Networks Kenya Limited; exercised only with leave of the Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Vipingo Ridge Limited v Kikenni Properties Limited & another (Civil Appeal E008 of 2022) [2023] KECA 1277 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1277/eng@2023-10-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.