Oilfields Engineering & Supplies Ltd v Zakhem International Construction Ltd; Ecobank Kenya Ltd & 3 others (Interested Parties) (Civil Appeal (Application) E504 of 2024) [2025] KECA 1362 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that appeals against a judge's recusal decision in arbitration-related proceedings do not require leave under the Arbitration Act.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the decision of the learned Judge declining a plea for his recusal on grounds of alleged bias, lack of impartiality and denial of the right to fair hearing is one appealable to this Court only with leave under section 39 of the Arbitration Act
Key legal issues
#Whether leave under section 39(3) of the Arbitration Act is required before an appeal to the Court of Appeal against a recusal decision made in pending section 35/36 proceedings
Leave is not required. Section 39(3) applies only to appeals against a High Court decision under section 39(2). The High Court had not determined any question of law arising in the arbitration nor confirmed, varied or set aside the award; the recusal application was anchored in the Constitution and the Judicial Service Act, not the Arbitration Act.
The court read section 39 as a whole, noting that subsection (2) governs decisions determining questions of law arising in the course of arbitration or confirming, varying or setting aside awards. Since the High Court was yet to pronounce itself on the award, the consent/leave limitation in section 39(3) was inapplicable. The recusal application had nothing to do with the process or legal standing of the award and concerned only alleged judicial misconduct on fair hearing. Anne Mumbi Hinga was distinguished because there the High Court had already determined an application under section 36.
The scope of judicial non-intervention under section 10 of the Arbitration Act
The principle of party autonomy and judicial non-intervention protects the arbitral award itself from interference, not every procedural decision of a judge handling an arbitral matter; constitutional claims of bias and denial of fair hearing remain appealable without leave.
The court affirmed that section 10 and the UNCITRAL Model Law ethos limit court intervention, and that what the entire arbitral scheme immunises from liberal judicial intervention is the arbitral award itself. It declined to extend that hedge of protection to every procedural deed or misdeed of a judge seized with an arbitral matter, aligning with the Indian and English authorities cited that appeals lie without leave on decisions other than on the award itself.
Legal principles established
#- The leave or consent requirement in section 39(3) of the Arbitration Act applies only to appeals against a High Court decision under section 39(2) - that is, a determination of a question of law arising in the course of arbitration or a decision confirming, varying or setting aside an arbitral award - and does not apply to appeals against interlocutory or procedural decisions such as a recusal ruling made within undetermined section 35/36 proceedings.
- Section 39 of the Arbitration Act does not immunise every procedural act of a High Court judge seized with an arbitral matter from appellate enquiry; what the arbitral scheme protects from liberal judicial intervention is the arbitral award itself.
Court orders
#- 1.The applicant's motion dated 4th October 2024 seeking to strike out the respondent's Notice of Appeal dated 3rd October 2024 was dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court at Milimani Law Courts
- HCARB No. E042 of 2021, Consolidated with E036 of 2021
- Jurisdiction invoked
- Article 164(3) of the Constitution; the question was whether leave under section 39(3) of the Arbitration Act, 1995 was required before appealing to the Court of Appeal
- Consolidated with
- HCARB No. E042 of 2021, HCARB No. E036 of 2021
Relief refused
#Order to strike out the respondent's Notice of Appeal dated 3rd October 2024
The leave requirement under section 39(3) of the Arbitration Act applies only to appeals against a High Court decision under section 39(2), which determines a question of law arising in the arbitration or confirms, varies or sets aside an award; the recusal decision is not such a decision, so the notice of appeal was competent
Costs
The same is accordingly dismissed with costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The inevitable fate of the motion before us, which Dr. O'Kubasu to his credit conceded was "hazy," is rejection. The same is accordingly dismissed with costs.
The High Court has not rendered itself in either of the above respects and it must therefore follow, per force, that the consent or leave limitation contained in section 39(3) is not applicable to the case at bar.
We are unprepared to hold that non-intervention by way of appeal, unless with leave, is meant to put a hedge of protection from appellate enquiry on every procedural deed or misdeed of a Judge seized with an arbitral matter.
That application was not an application under Section 39(1) of the Arbitration Act as we have quoted and explained it. Rather, it was an application anchored in the Constitution and the Judicial Service Act and the Regulations thereunder.
Issues in the judgment
#The judgment contains typographical errors in quotations from authorities and statutes (e.g. 'UNICITRAL' for UNCITRAL; 'an International Commercial Arbitration' for 'on International Commercial Arbitration'; 'recconsideration' for 'reconsideration'; 'efi' renderings), and the citation for ZCCM appears as '[2019] FWHC 1285' elsewhere as '[2019] EWHC 1285', suggesting transcription corruption.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Oilfields Engineering & Supplies Ltd v Zakhem International Construction Ltd; Ecobank Kenya Ltd & 3 others (Interested Parties) (Civil Appeal (Application) E504 of 2024) [2025] KECA 1362 (KLR)", Case Analysis (2025). Civil Application No. E503 of 2024 (ruling on motion dated 4th October 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1362/eng@2025-07-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.