Thika Coffee Mills v Rwama Farmers Co-operative Society Limited
The bottom line
#Supreme Court affirms arbitral awards cannot be challenged on factual errors under section 35.
What this practically means
#New Kenya Planters Co-operative Union tried to appeal a Court of Appeal decision that refused to let them take their case to the Supreme Court. They wanted to challenge an arbitral award, arguing the arbitrator made mistakes. The Supreme Court said no. The law only allows setting aside an award on specific grounds like fraud or bias, not because the arbitrator got the facts wrong. The Court also said this was a dispute between two parties, not a matter of general public importance.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether to extend time within which to file this application
- 2.whether to review the Court of Appeal ruling on certification of the matter as that involving great public importance
Key legal issues
#Whether the Court should extend time for filing the application for review of certification.
The Court granted the extension of time, finding the explanation regarding COVID-19 disruptions satisfactory.
The application was filed 6 days late. The delay was attributed to confusion from COVID-19 regarding ruling delivery and movement restrictions that prevented the deponent from traveling to the advocate's office. The respondent did not object to this prayer. The Court was satisfied with the explanation.
Whether the Court should review the Court of Appeal's refusal to certify the intended appeal as involving a matter of general public importance.
The Court declined to review, affirming the Court of Appeal's decision that no matter of general public importance was involved.
The applicant's core grievance was about the arbitrator exceeding his mandate and the award being contrary to public policy, which are issues already covered under section 35 of the Arbitration Act. The Court had recently settled the law on section 35 in the Nyutu Agrovet case. The applicant's argument would improperly extend section 35 to include review of factual inferences, which is not permissible. The matter was a specific litigant's disagreement, not a question transcending the parties.
Whether the High Court or Court of Appeal can examine the merits of an arbitral award under section 35 of the Arbitration Act.
The Court held that the parameters for setting aside under section 35 are specific and do not permit a review of the merits of an arbitral award based on perceived wrong inferences of fact.
The applicant sought to have the Court determine whether a court can examine the merits of an arbitral award in 'deserving cases.' The Court found that the applicant's grievance about the arbitrator exceeding his mandate and the award being against public policy were already covered by section 35. To allow the applicant's argument would extend section 35 to include review of factual inferences, which would be an appeal on the merits, not a setting aside proceeding. The Court distinguished this from an appeal under section 39 of the Arbitration Act.
Legal principles established
#- Section 35 of the Arbitration Act lists the only grounds for setting aside an award; courts cannot add new grounds like factual errors.
- A matter of general public importance must affect many people, not just the parties in the case.
- Courts will not review the merits of an arbitral award under the guise of setting it aside.
- Extension of time to file court documents can be granted if the delay is explained, such as disruptions from COVID-19.
- The distinction between setting aside an award (section 35) and appealing it (section 39) must be respected.
Court orders
#- 1.The originating motion dated 21st May 2020 is hereby disallowed.
- 2.Each party to bear its own costs relating to this application.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Court of Appeal at Nairobi
- Civil Application No. 389 of 2018
- Jurisdiction invoked
- Article 163(4)(b) of the Constitution
Relief refused
#Extension of time to file the application out of time
The Court granted this prayer, so it was not refused.
Review of the Court of Appeal ruling on certification
The Court found no merit in the applicant's arguments and affirmed the Court of Appeal's position.
Setting aside the Court of Appeal ruling of 24th April 2020 and substituting it with an order allowing the Notice of Motion dated 24th December 2018
The Court disallowed the originating motion in its entirety.
Grant of leave to appeal to the Supreme Court against the Court of Appeal judgment of 12th October 2018
The Court declined to certify the matter as one of general public importance.
Costs
Each party to bear its own costs relating to this application.
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.
We are satisfied with the explanation given by the applicant and accordingly allow the prayer for extension of time as sought.
The parameters of setting aside under section 35 are very specific and offer sufficient recourse to be resorted to by any party aggrieved by the arbitral award where the grievance meets the criteria.
It becomes critical for us to draw the line between the matter being one of general public importance and addressing a specific litigant's disagreement with a decision of the Court
The present case does not merit the certification sought and we affirm the Court of Appeal position.
The originating motion dated 21st May 2020 is hereby disallowed.
Each party to bear its own costs relating to this application.
Key timeline
#Practical implications
#Arbitration challenge grounds remain narrow
Lawyers must advise clients that section 35 of the Arbitration Act does not allow courts to review factual findings. Only specific grounds like fraud, bias, or public policy can be used. Arguing that the arbitrator made a wrong factual inference will not succeed. The Nyutu Agrovet precedent is now reinforced. Use section 39 for appeals on points of law, not section 35.
Arbitration finality is reinforced
Businesses using arbitration should know that awards are final on facts. To challenge an award, you must prove one of the limited grounds under section 35. This reduces litigation risk but requires careful selection of arbitrators and strong presentation of evidence at the hearing. Consider including a clause allowing appeal on points of law under section 39 if desired.
Limited options to dispute arbitral awards
Individuals in arbitration cannot appeal based on factual errors. Ensure you present all evidence and arguments at the arbitration stage. If you are unhappy with the outcome, seek legal advice on whether any of the narrow grounds under section 35 apply (e.g., corruption, bias, or violation of public policy). Otherwise, the award is binding.
Frequently asked questions
#Can I challenge an arbitral award in Kenya based on wrong facts?+
No. Under section 35 of the Arbitration Act, you can only challenge an award on specific grounds like fraud, bias, or if it violates public policy. Disagreeing with the arbitrator's factual findings is not enough. The Supreme Court confirmed this in the New Kenya Planters case.
What is a matter of general public importance in Kenya?+
A matter of general public importance is a legal issue that affects many people beyond the specific parties in the case. It must transcend the individual dispute. The Supreme Court said that a party's mere disagreement with a court decision does not qualify. This is required to appeal to the Supreme Court under Article 163(4)(b).
How to appeal a Court of Appeal decision to the Supreme Court in Kenya?+
You must first ask the Court of Appeal to certify that your case involves a matter of general public importance. If they refuse, you can apply to the Supreme Court for review. The Supreme Court will only grant certification if the issue affects the public broadly, not just your personal grievance.
What is section 35 of the Arbitration Act in Kenya?+
Section 35 of the Arbitration Act lists the only grounds on which a court can set aside an arbitral award. These include incapacity of a party, invalid arbitration agreement, lack of proper notice, the award exceeding the scope of the arbitration, or the award being against public policy. Courts cannot add new grounds like factual errors.
Later judgments citing this (7)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Amu Power Company Limited v Save Lamu & 6 others (Environment and Land Appeal 6 of 2019) [2025] KEELC 7285 (KLR)[2025] KEELC 7285 (KLR)16 Oct 2025
- Machuke & 3 others v Ngare & 6 others (Civil Application E001 of 2024) [2025] KECA 27 (KLR)[2025] KECA 27 (KLR)17 Jan 2025applied
- TMG & another v AP[2024] KESC 48 (KLR)30 Aug 2024applied
- United Democratic Party & another v Independent Electoral and Boundaries Commission (IEBC) & 2 others (Election Petition Appeal E017 of 2023) [2024] KECA 163 (KLR)[2024] KECA 163 (KLR)23 Feb 2024
- Sombo & Others & 4 others (Suing on behalf of 15,000 individuals of the Amwezi and Mirima Clans of the Duruma Community) v Nyari Investments (1996) Ltd & 5 others (Civil Appeal (Application) E050 of 2023) [2023] KECA 1435 (KLR)[2023] KECA 1435 (KLR)24 Nov 2023applied
- Kioi & another (Suing on behalf of the Estate of Mwangi Kioi (Deceased)) v Mukolwe & another (Sued as administrators of the Estate of David Nyambu Jonathan Kituri (Deceased) & another[2023] KESC 53 (KLR)16 Jun 2023
- Nyutu Agrovet Limited v Airtel Networks Kenya Limited; Chartered Institute of Arbitrators-Kenya Branch[2019] KESC 11 (KLR)6 Dec 2019
Cite this brief
#Cite this brief
Caselaw, "Thika Coffee Mills v Rwama Farmers Co-operative Society Limited", Case Analysis (2020). Application 11 of 2020. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2020/17/eng@2020-09-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.