Kenya Shell Ltd v Kobil Petroleum Limited

the Arbitration Rules 1997 and section 3A of the Civil Procedure Act. It applied to the superior court seeking orders that: - 3. “ 1. The arbitral award dated 17th November, 2003 and led in this Court on 6th February, 2004 be set aside. 2. Costs of this application be provided for.” That application was heard by the superior court (O K Mutungi J) and in a ruling delivered on 14th February 2006, it was dismissed with costs to the respondent Kobil Petroleum Limited against the applicant Kenya Shell Limited. The applicant felt aggrieved by that decision and sought leave from the superior court to appeal against that ruling of 14th February 2006. That application was also refused. The applicant, not deterred, applied to this Court vide notice of motion dated 28th February, 2006 in which it sought only one order that:“ The applicant be granted leave to appeal against the order of the High Court of Kenya at Milimani Commercial Courts, Nairobi dated the 14th day of February, 2006 in High Court Miscellaneous Civil Application No 59 of 2004.” 4. That application was supported by adavit sworn by Mr Kiragu Kimani, the learned counsel for the applicant, in which he gave the narrative history of the matter, the reasons for the delay, and ended by stating that in his consideration, the intended appeal has good prospects of success and annexed a copy of the draft memorandum of appeal to be led once leave is granted. The respondent opposed the application and also led a replying adavit sworn by its Assistant Managing Director George Njoroge Mwangi in which he said he was advised by his learned counsel that as the arbitration out of which the intended appeal would arise was governed by the provisions of the Arbitration Act No 4 of 1995, an appeal from the award could only be founded on the provisions of section 39 of the Arbitration Act No 4 of 1995 and as the respondent had not consented to the intended appeal being led, the intended appeal did not lie and this Court has no jurisdiction to entertain the application for leave to appeal as the Court has no jurisdiction to entertain the appeal in any event. 5. That application came up for hearing before us on 20th March, 2006. Before the main hearing could start, Mr Oyatsi the learned counsel for respondent raised a preliminary point, maintaining that this Court has no jurisdiction to hear the intended appeal from the decision of the superior court arising from section 35 of the Arbitration Act No 4 of 1995 and that being the case, it would be improper and an act of futility to hear this application for leave to le an appeal from the same decision. Mr Kiragu Kimani on the other hand contended that this Court has jurisdiction and has always had jurisdiction to hear appeals from decisions arising from the superior court’s decision on Arbitration Act No 4 of 1995. This ruling is therefore only conned to that preliminary objection. 6. Mr Oyatsi’s argument was that section 39(3) of the Arbitration Act gives limited right to appeal but only upon certain other conditions being met, one of which is that the respondent must accede to the appeal. Civil Procedure Rules can only be applied so far as is appropriate by dint of rule 11 of the Arbitration Rules 1997 but under section 31 of Interpretation and General Provisions Act chapter 2 Laws of Kenya the rules such as rule 11 of the Arbitration Rules cannot be applied to defeat the express provision of an Act. He maintained that in law right of appeal to this Court can only be donated by statute and so his contention was that under the Arbitration Act, the Court of Appeal can only entertain appeals as provided by section 39 (3) and that is only in cases where the parties have agreed that an appeal shall lie and the High Court has granted leave to appeal or failing leave by the High Court, this Court has granted special leave to appeal. He buttressed his argument with several authorities, which I have considered. Mr Kiragu Kimani on the other hand reminded the Court that https://new.kenyalaw.org/akn/ke/judgment/keca/2006/382/eng@2006-04-07 2

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there are many authorities to indicate that the Court has been entertaining appeals from arbitration awards without much ado. The application involved section 35 of the Arbitration Act and rules 4 and 7 of the Arbitration Rules 1997. If I understood him well, his line of argument was that once nal arbitral award is given the arbitral proceedings are terminated as per section 33(1) of the Arbitration Act. After the award is given then under rule 4 of the Arbitration Rules 1997, any party may le award in the High Court. Thereafter all the applications are subsequent to ling the award, and as neither the Arbitration Act nor the rules dene what summons is, rule 11 of the Arbitration Rules comes into play and that rule, according to Mr Kimani allows Civil Procedure Rules to apply. If the rules apply, he states, then the Act under which those rules were made would also apply - particularly as the rules are made pursuant to section 81 of the Civil Procedure Act. Further, in matters such as setting aside of arbitration award, order 50 has to be invoked and he also maintained that under section 75 of the Civil Procedure Act, the appeal does lie as of right as well as section 66 of the same Act. Section 39 of the Arbitration Act No 4 of 1995 deals with very peculiar situation and does not deal with arbitration generally. It deals with a situation where parties in a domestic arbitration feel that a matter needs Court of Appeal’s decision on point of law during the course of arbitration whereas in the case before us the intended appeal would be dealing with an award at the end of arbitration. In his view section 39(3) is not relevant here as it deals with a situation where parties had gone to superior court by agreement and so they need to proceed to Court of Appeal by agreement. He ended his submission by stating that there is no inconsistency between section 31(b) of the Interpretation and General Provisions Act and rule 11 of the Arbitration Rules. 7. The question before us is simply this. Does an appeal lie to the Court of Appeal arising from an arbitration award, and if so to what extent? 8. In my view, the starting point is the Appellate Jurisdiction Act chapter 9. Section 3(1) of the same act states: “ 3. (1) 9. The Court of Appeal shall have jurisdiction to hear and determine appeals from the High Court in cases in which an appeal lies to the Court of Appeal under any law.” That provision means in eect that in order to determine whether the Court of Appeal has jurisdiction to hear and determine an appeal from the High Court one has to look at the relevant law in consideration so as to see if that law donates the power to hear and determine an appeal from it. Failing that one would have to look at other statutes to see if on the relevant issue any statute donates jurisdiction to the Court of Appeal. In other words the right to entertain an appeal from the High Court must emanate from the relevant statute or any other statute. This is now settled law. In the case of Harnam Singh Bhogal trading as Harnam Singh & Company v Jadva Karsan (1953) 20 EACA page 17, the predecessor to this Court stated: “ It is well settled law that a right to appeal can only be founded on a statute and that any party who seeks to avail himself of the right must strictly comply with the conditions prescribed by the statute.” https://new.kenyalaw.org/akn/ke/judgment/keca/2006/382/eng@2006-04-07 3

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10. That was way back in 1953. In a more recent case of Rafiki Enterprises v Kingsway Tyres & Automart Limited - Civil Application No Nai 375 of 1995 (unreported), this Court had the following to say:“ And it is now trite law that a right of appeal must be expressly given by law and such a right cannot be implied or inferred.” 11. Also in the case of Munene v Republic (No 2) KLR 105 this Court stated: “ It is well established that there is no right of appeal apart from statute, either it is expressly granted by statutory authority or it is not. There is no right of appeal by mere implication or by inference.” 12. These two authorities were quoted with approval by this Court in the case of Telkom Kenya Limited v Kamconsult Limited and Another - Civil Application No Nai 55 of 2002. 13. This then takes us to the application that was before the superior court. It is not in dispute that the application that was before the superior court was brought to the Court (and I have alluded to herebefore) by way of chamber summons under section 35(2) (iv) of the Arbitration Act No 4 of 1995 rules 4 and 7 of the Arbitration Rules 1997 and section 3A of the Civil Procedure Act. In my view, it goes without saying that the substantive provisions under which that application was brought were section 35(2) (iv) of the Arbitration Act No 4 of 1995 and rules 4 and 7 of Arbitration Rules 1997. Clearly, as in many such applications, section 3A of the Civil Procedure Act was quoted merely as a saving provision and nothing more. I may also add here that I think it is important that those provisions of the Arbitration Act No 4 of 1995 were evoked notwithstanding that the arbitration had been nalized and the award pronounced and further, that those provisions of the Arbitration Act No 4 of 1995 were used for buttressing the application after the award had been led in Court. In my humble view, that the makers of the law found it t to enact section 35 of the Arbitration Act No 4 of 1995 after section 33 meant clearly that even after the award is pronounced and the award is led in Court, still the recourse to Court for setting it aside has to be through the provisions of the same Act and the Arbitration Rules of 1997 and where there is a lacuna in the rules, then the provisions of rule 11 would be used to supply Civil Procedure Rules for purposes of lling up the procedural gaps in the rules. I will consider this aspect later in this ruling. 14. Back to the Arbitration Act No 4 of 1995. Does it make any provisions for right of appeal to the parties involved in arbitration? Put another way, does it donate to the Court of Appeal jurisdiction to entertain appeals from the High Court on matters arising from it? Section 10 of the Arbitration Act No 4 of 1995 states as follows: “ Except as provided in this Act, no Court shall intervene in matters governed by this Act.” 15. That is a mandatory provision. I do not need to elaborate on it for it is clear and non-ambiguous. In my mind intervention discouraged by that provision includes intervention at appellate level as well. What needs to be looked into in the Act is which exception if any are provided in the Act. In short, according to the provisions of the Act, in which circumstances would the Court intervene in matters governed by the Arbitration Act? Section 6 of the same Act states that if a matter which is the subject of an arbitration agreement is taken to the Court, then the Court shall, if a party applies not later than the time when that party enters appearance or les any pleadings or takes any other step in the proceedings, stay the proceedings and refer the parties to arbitration and certain exceptions are given there that would allow the Court to proceed with such a matter without referring it to the arbitration. That is not in any way donating to the Court the power to hear the matter. It is only allowing the Court https://new.kenyalaw.org/akn/ke/judgment/keca/2006/382/eng@2006-04-07 4

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to proceed with what was already before it. Further that section does not donate appellate jurisdiction to the Court of Appeal on arbitration awards. The next is section 12 of the same Arbitration Act No 4 of 1995. That deals with appointment of arbitrators(s) where it provides that the parties can apply to the High Court to appoint an arbitrator or arbitrators in case of any dispute on the same and it states at section 12(5) as follows:“ (5) 16. 17. 18. A decision of the High Court in respect of a matter under subsection (3) or (4) shall be nal and not subject to appeal.” That is a provision that limits the right of a party to the decision of the superior court and not beyond but it is nonetheless an incidence where a Court may intervene in matters governed by the Arbitration Act No 4 of 1995. It is one of the exceptions though one notes it is limited to superior court only and not beyond. Section 15(1) provides for the termination of the mandate of arbitration. Section 15(2) and (3) states as follows: “ (2) If there is any dispute concerning any of the grounds referred to in subsection (1) (a), a party may apply to the High Court to decide on the termination of the mandate. (3) A decision of the High Court under subsection (2) shall be nal and shall not be subject to appeal.” Again the High Court is by dint of that section allowed to intervene in matters governed by the Arbitration Act but no appeal from the same is allowed. Section 17 of the Arbitration Act No 4 of 1995 makes provisions for arbitral Tribunal to decide on whether it has jurisdiction or not should a dispute arise concerning the same and subsections (6) and (7) of section 17 state as follows:“ (6) Where the arbitral tribunal rules as a preliminary question that it has jurisdiction, any party aggrieved by such ruling may apply to the High Court, within 30 days after having received notice of that ruling, to decide the matter. (7) The decision by the High Court shall be nal and shall not be subject to appeal.” Section 18(2) and (3) of the same Act also allows the High Court, if a request is made either by the arbitral tribunal or by any party with the approval of the tribunal to assist the tribunal in the exercise of any power conferred upon the tribunal under section 18(1). In such a case the High Court will have power to make such orders as the tribunal would make and the Arbitration Act No 4 of 1995 section 28 provides that arbitral tribunal, or a party with the approval of the tribunal may request from the High Court assistance in taking evidence and High Court may execute the request within its competence according to its rules on taking evidence. Part V1 of the Arbitration Act No 4 of 1995 is dedicated to “recourse to High Court against arbitral award.” It is composed of only one section and that is section 35. It species at section 35(1) that: “ Recourse to the High Court against an arbitral award may be made only by an application for setting aside the award under subsection (2) and (3).” 19. The other provisions provide the circumstances under which the award may be set aside, the procedure or time limit within which the application for setting aside the award may be made and what the superior court may do in the interim period when required to set aside the award. It must be observed that this is the main provision in the Arbitration Act No 4 of 1995 which confers onto the High Court https://new.kenyalaw.org/akn/ke/judgment/keca/2006/382/eng@2006-04-07 5

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jurisdiction to interfere with the substantive decision of the arbitral tribunal made pursuant to the Act. All other jurisdictions given to the superior court are to make decisions on procedural matters but even in those matters, the superior court’s decision is by the same provisions not appealable. The other provision in the act granting the High Court jurisdiction to intervene are sections 36 and 37 in respect of recognition and enforcement of awards. The wordings in those sections tend to show that the awards mentioned in them are awards made in states outside Kenya. 20. I have gone through the provisions above in an attempt to see if any part of the Arbitration Act 1995 has freely donated the appellate jurisdiction to the Court of Appeal. I have also done so with the legal principle I have referred to herein above that the right of appeal to this Court should be expressly granted by statutory authority and that such a right cannot be implied (see cases of Raki Enterprises v Kingsway Tyres and Munene v Republic (supra) in mind. Upto section 39(3) no such statutory authority gives this Court the jurisdiction to hear appeals from the superior court. Section 39(3) states as follows:“ (3) Notwithstanding sections 10 and 35 an appeal shall lie to the Court of Appeal against a decision of the High Court under subsection (2):(a) if the parties have so agreed that an appeal shall lie; and (b) the High Court grants leave to appeal, or failing leave by the High Court, the Court of Appeal grants special leave to appeal; and on such appeal the Court of Appeal may exercise any of the powers which the High Court could have exercised under subsection 2.” 21. This is the only provision in the Arbitration Act No 4 of 1995 giving the Court of Appeal jurisdiction to hear an appeal from the superior court on matters governed by the Act. The use of the words “notwithstanding sections 10 and 35,“ to me means that this provision in section 39(3) is meant by the legislature to provide an exception to the provision of section 10 that no Court should interfere in matters governed by the Act and as to section 35 the phrase is used to indicate that the decision of the superior court on an application for setting aside can only be challenged in the Court of Appeal by way of an appeal if conditions in section 39(3) are satised. I do agree with Mr Kimani that section 39(3) only applies to special cases and is not of general applications. It only applies in cases covered under section 39(1)(a) and (b) ie where the matter concerns a domestic arbitration and when the parties have agreed that an application be made to a Court to determine any question of law arising in the course of the arbitration; or where an approach is made to the High Court on any question of law arising out of the award. Under those circumstances, an appeal shall lie to this Court if the parties have agreed that an appeal shall lie and if the High Court has granted leave to appeal or if leave is not granted by the High Court, this Court grants special leave to appeal. 22. This is the situation in special cases. In my mind it is an exception to the Arbitration Act requirement as enshrined in section 10 of the Arbitration Act No 4 of 1995 and it is the only way out for a party aggrieved by superior court’s decision under section 35 of the Act. That is as far as the act is concerned. A non-persuasive authority seems to render support to this proposition. It is found in the case of Nova Chemicals Ltd v Alcon International Ltd, Milimani Commercial Courts Nairobi Civil Suit No Misc Application 1124 of 2002 where Ringera J (as he then was) stated inter alia as follows:“ As regards appeals to the Court of Appeal on questions of law, a plain reading of section 39(1) (b) (2) and (3) of the Act leads to the inexorable conclusion that such a right is only https://new.kenyalaw.org/akn/ke/judgment/keca/2006/382/eng@2006-04-07 6

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available where (i) the subject matter is an appellate decision by the High Court on an issue of law arising out of the award; and (ii) in an appeal preferred with the agreement of the parties to the arbitration; and (iii) the parties have agreed that an appeal shall lie to the Court of Appeal; and (iv) the High Court has granted leave to appeal.” 23. Thus in my view other than as provided under section 39(3), this Court would have no direct jurisdiction donated by the Arbitration Act No 4 of 1995 to entertain an appeal from an award given under the Act. 24. However, that is not the end of it all. For all the law says is that a right of appeal to this Court must be expressly given by any statutory provision and that such a right cannot be implied or inferred. It must be expressly given. That principle of law does not specify that such a right must only be given by the relevant Act under consideration. One can still imagine situations where such a right can be donated by another act altogether. Before us Mr Kimani submitted that after the close of the arbitration pursuant to section 33(1) of the Arbitration Act, rule 11 of the Arbitration Rules is applied where there is a lacuna in the Arbitration Act and if that is done the Civil Procedure Rules come to play and Civil Procedure Rules cannot be applied on their own without the provisions of the Act that has created them. If this is done then sections 66 and 75 of the Civil Procedure Act would come into play and thus the appeal from the decision of the High Court arising from application to set aside an award would lie to this Court. 25. First, is there a lacuna in the Arbitration Act No 4 of 1995 to warrant the importation of any other law such as Civil Procedure Act? In my mind, the answer is none. The Act clearly spells out what matters would be decided nally by the High Court and under what circumstances would a party have access to the Court of Appeal. That a party’s wishes are not taken care of does not necessarily mean that there is a lacuna to call for the application of rule 11 of Arbitration Rules 1997. Second, I do agree with Mr Oyatsi that when there is a lacuna in the rules then rule 11 of Arbitration rules 1997 will be applied to ll the lacuna but that rule can only be invoked to provide an aid where there is a lacuna in the rules and certainly not in the provisions of the Act itself. When rule 11 is used then those rules of the Civil Procedure imported to aid the arbitration rules themselves become part of the arbitration rules. That seems to me sound law. They however remain rules and not substantive law. Looked at from that point whatever part of the Civil Procedure Rules are incorporated into the Arbitration Act by dint of rule 11 of the Arbitration Rules 1997 can only be and remain Civil Procedure rules used as part of the Arbitration rules. These rules make up subsidiary legislation. They cannot be used as the basis for applying section 66 or 75 of the Civil Procedure Act into the Arbitration Act No 4 of 1995 for Arbitration Act itself has not stated so. In my view, procedure rules are used to ensure the realization of substantive law but substantive laws are not used to ensure procedures. To extend the use of rule 11 of the Arbitration Act rules 1997 into incorporating the use of Civil Procedure Act section 66 or section 75 cannot be tenable in our jurisprudence. I agree that Civil Procedure Act is an Act of general application in civil matters but it would only be applied in civil matters that do not have specic provisions entrenched providing for what appeals can be entertained by this Court. Its provisions cannot override any specic provisions of an Act of Parliament which had made specic limitations on a matter such as the right of appeal, neither can it override the spirit of another Act. I may add here that I do agree that as is provided under section 31(b) of the Interpretation and General Provisions Act chapter 2, Laws of Kenya, no subsidiary legislation shall be inconsistent with the provisions of an Act. In the matter before us, the provisions of Arbitration Act limits the appeals to the Court of Appeal and ties the same to certain conditions precedent. It would be wrong to use rule 11 to inject Civil Procedure Rules and worse still Civil Procedure Act into Arbitration Act No 4 of 1995, as that would provide inconsistency in the provisions of the Arbitration Act No 4 of 1995. https://new.kenyalaw.org/akn/ke/judgment/keca/2006/382/eng@2006-04-07 7

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26. I have considered the authorities that were availed to us during the hearing of the preliminary point. In a number of them, this point of whether this Court had jurisdiction to entertain an appeal against decision made under section 35(2) of the Arbitration Act was not taken by the parties and was not argued. In the case of Telkom Kenya Limited v Kamconsult Limited and Another - Civil Application No Nai 55 of 2002 (supra) this Court found that the right of appeal had been donated to it by the combined eect of sections 75(1)(h) of the Civil Procedure Act together with order 42 rule 1 of the Civil Procedure Rules. That however, was a case where the respondent was seeking a review from the superior court under order 44 of the Civil Procedure Act. The superior court made a ruling under section 17 of the Arbitration Act and the respondent was dissatised and sought a review of the same ruling. It will be clear that that application was made to the superior court under order 44 and thus the superior court was dealing with an appealable application. In this matter the application sought to be appealed was under section 35(2) (iv) of the Arbitration Act No 4 of 1995 and rules 4 and 7 of the same Act. I may however, say that in my mind section 75 of the Civil Procedure Act would provide for avenue in respect of arbitrations under order 45 of the Civil Procedure Rules. I would not import it into Arbitration Act No 4 of 1995. 27. We were not referred to any other law that might have donated right of appeal to Court of Appeal to a party aggrieved by superior court’s decision on the application to set aside an award under the Arbitration Act No 4 of 1995 other than the Arbitration Act itself and the Civil Procedure Act and Rules. I have not been able to nd any other act that donates that right. 28. The above are my view of the matter. What it all means is that in my mind the right of appeal to the Court of Appeal is restricted and is treated as an exception under the Arbitration Act No 4 of 1995 and can only be accessed upon certain condition precedent as provided under section 39(3). This is not unusual. The literature on arbitration would tend to show that all along, the intention is to allow parties to have their matters arbitrated independently of Courts as much as possible. This is perhaps to encourage commerce and economic development of the commercial world. In the International Commercial Arbitration in UNCITRAL Model Law Jurisdictions, chapter V11 headed “Recourse Against Award” it is stated inter alia as follows: “ Due to attempts to minimize the reduction of judicial intervention in international commercial arbitration, every occasion where such intervention is permitted has to be scrutinized closely.” 29. That is in international arbitration. However, provisions close to those in our section 39(3) where an appeal from arbitral awards would be only by way of leave of the court and not automatic are also in other jurisdictions - (see case of Geogas SA v Trammo Gas Ltd, known as the Beleares [1991] 2 All ER 110, National Westminster Bank Plc v ArthurYoung McClelland Moores & Co (a rm) (No 2) [1991] 3 All ER 21). 30. Mr Oyatsi told the Court that his client did not accede to the intended appeal as is required by section 39(3) (a) and Mr Kimani stated that the superior court in fact refused leave for him to appeal. Under those circumstances, the intended appeal cannot lie as the conditions precedent as spelt out under section 39(3) (a) and part of (b) have not been complied with. That being the case, the intended appeal cannot lie to this Court and it would be an act in futility entertaining this application for leave to appeal. I would thus sustain the objection and strike out the application. Cost to the respondent. https://new.kenyalaw.org/akn/ke/judgment/keca/2006/382/eng@2006-04-07 8

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Judgement of Omolo JA. 31. I had the advantage of reading in draft form the ruling of Onyango-Otieno, JA and I accept his narration of the facts underlying this dispute. He has ably set out those facts and there is, accordingly, no occasion for me to repeat the facts. The simple question for our determination at this stage of the proceedings is whether the Court has jurisdiction to hear and determine an application for leave to appeal to the Court against an order made by the High Court pursuant to the provisions of section 35 of the Arbitration Act, No 4 of 1995. Mr Oyatsi, learned counsel for the respondent Kobil Petroleum Ltd, contends that section 39 of the Act provides the only circumstance s in which a party to proceedings conducted in accordance with the Act can come to this Court by way of an appeal from the decision of the High Court. Mr Kiragu Kimani, learned counsel for the applicant Kenya Shell Ltd, contended to the contrary. Section 39 of the Act provides as follows:“ 39. (1) Where in the case of a domestic arbitration the parties have agreed that (a) an application by any party may be made to a Court to determine any question of law arising in the course of the arbitration; or (b) an appeal by any party may be made to a Court on any question of law arising out of the award; such application or appeal, as the case may be, may be made to the High Court. (2) (3) On an application or appeal being made to it under subsection (1), the High Court may, as appropriate, (a) determine the question of law arising; (b) conrm, vary, or set aside the arbitral award or remit the matter to the arbitral tribunal for reconsideration or, where another arbitral tribunal has been appointed, to that arbitral tribunal for consideration. Notwithstanding sections 10 and 35, an appeal shall lie to the Court of Appeal against a decision of the High Court under subsection (2) (a) if the parties have so agreed that an appeal shall lie; and (b) the High Court grants leave to appeal, or failing leave by the High Court, the Court of Appeal grants special leave to appeal; and on such appeal the Court of Appeal may exercise any of the powers which the High Court could have exercised under subsection (2). https://new.kenyalaw.org/akn/ke/judgment/keca/2006/382/eng@2006-04-07 9

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(4) 32. An application or appeal under this section shall be made within the time limit in the manner prescribed by the Rules of Court applicable, as the case may be, in the High Court or the Court of Appeal.” It is clear to me beyond a peradventure that the provisions of section 39 of the Act only apply where, rst: (i) there is a domestic arbitration; and (ii) a question of law arises in the course of the arbitration and (iii) 33. the parties to the domestic arbitration have agreed that the question of law should be referred to the determination of the High Court. Since the process of arbitration would still be going on, it is only logical to assume that the process would be held in abeyance pending the determination of the question of law referred to the High Court and once the High Court has given its decision, the arbitral tribunal would be expected to resume the conduct of its proceedings bearing in mind the legal position as expounded by the High Court. The second scenario is where in a domestic arbitration:(i) The arbitral tribunal has itself made an award and the award so made raises a point of law; and (ii) The parties have agreed that the point of law so raised in the award be referred to the determination of the High Court.” 34. It is perfectly understandable that in these two circumstances the right of appeal from the determination of High Court should be severely limited by law as is prescribed in section 39(3) of the Act. In the rst scenario, the arbitral process is held in abeyance and it is only right that the process should not be endlessly held in abeyance while parties pursue unlimited right of appeal. In the second scenario, an award has been made but the parties are not quite certain as to the determination of law made in the award. It is not, therefore, surprising to me that section 39(3) of the Act severely limits the right of appeal from decisions of the High Court made under section 39(2) of the Act. The provisions of subsection (3) are, in my view, restricted to the circumstances stated in subsection (2) and I do not understand them to mean that the right of appeal to the Court of Appeal, under all the provisions of the Act, can only be exercised in accordance with the provisions of section 39(3) of the Act. I would myself reject any such construction. 35. I agree with Onyango-Otieno JA, that the right of appeal to this Court can only be conferred by statute and cannot be implied or inferred. That is now old hat. Of course, under the Arbitration Act, the Courts are not allowed to intervene in an arbitral process, but the Act sets out numerous circumstances in which the High Court is permitted to intervene. Section 12 of the Act gives the High Court the power to appoint arbitrators in certain circumstances; that is a procedural step and does not really require legal interpretation. It is not surprising that section 12(5) specically provides that such a decision shall be nal and not be subject to an appeal. So that neither the High Court, nor the Court of Appeal would have jurisdiction to give leave to any party to appeal since the right of appeal under that section is expressly barred. 36. Again section 17 of the Act deals with the jurisdiction of the arbitral tribunal and it provides that the tribunal can itself determine whether or not it has jurisdiction to hear and determine the matter. A right of appeal from such determination is provided to the parties who can appeal to the High Court. https://new.kenyalaw.org/akn/ke/judgment/keca/2006/382/eng@2006-04-07 10

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Subsection (7) of Section 17 specically bars any further appeal from the determination of the High Court and once again neither that Court nor this Court would have jurisdiction to grant leave to appeal to any party. 37. But section 35 of the Act gives the High Court power to set aside an award where certain things are shown to have taken place. That is a serious matter and the interesting thing about section 35 is that there is no similar provision at the end of it as is the case in sections 12 and 17, which specically bar appeals to the Court of Appeal. 38. The Civil Procedure Act, chapter 21 Laws of Kenya is “ An Act of Parliament to make provision for procedure in civil courts.” 39. It is an Act of general application in all civil matters and one cannot say that matters to do with arbitration are not civil matters. In my view the Civil Procedure Act applies to all civil matters unless the provisions of a particular legislation exclude it eg like sections 12 and 17 of the Arbitration Act and the proviso to section 15(4) of the Landlord & Tenant (Shops, Hotels & Catering Establishments) Act, chapter 301 Laws of Kenya all of which specically bar appeals from decisions of the High Court. 40. Section 75 of the Civil Procedure Act provides for appeals which can come to this Court as of right and those which can only come to the Court with leave either of the court making the decision sought to be appealed against or with leave of this Court. The only limitation which section 75 (2) places on such appeals is that:“ No appeal shall lie from any order passed in appeal under this section.” Section 75 Civil Procedure Act sets out the orders from which an appeal would lie as of right band shall also lie from any other order with the leave of the court making such order or of the court to which an appeal would lie if leave were granted ” 41. When the High Court is exercising its jurisdiction under section 35 of the Arbitration Act, it is not exercising an appellate jurisdiction so that section 75 (2) of the Civil Procedure Act does not apply. The current Arbitration Act was passed only in 1995 - Act No 4 of 1995. When it was passed, Parliament was aware of the existence of section 75 of the Civil Procedure Act and in the Arbitration Act, Parliament never sought to modify the provisions of section 75 of the Civil Procedure Act, for example, by saying in the Arbitration Act: “ Notwithstanding the provisions of section 75 of the Civil Procedure Act etc.” 42. For my part, I am satised that the provisions of section 35 of the Arbitration Act have not taken away the jurisdiction of either the High Court or the Court of Appeal to grant to a party leave to appeal from a decision of the High Court made under that section. If that was the intention, there was nothing to stop Parliament from specically providing in section 35 that there shall be no appeal from a decision made by the High Court under that section. Parliament specically so provided under various sections already set out herein. With respect to Mr Oyatsi, section 39 deals only with the two circumstances set out in that section and is not a general provision regarding all appeals under the Arbitration Act. My conclusion is that the Court has jurisdiction to grant to the applicant leave to appeal from the decision of the High Court made under section 35 of the Arbitration Act, and the Court can now proceed to hear the issue of whether or not it ought to grant leave. I would award the costs occasioned by the preliminary objection to the applicant. As O’Kubasu, JA agrees, those shall be the orders of the court. https://new.kenyalaw.org/akn/ke/judgment/keca/2006/382/eng@2006-04-07 11

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Judgement of O’Kubasu JA. 43. I had the advantage of reading in draft form the rulings of Omolo and Onyango-Otieno, JJ A. I accept the narration of the facts relating to this dispute as set out in the ruling of Onyango-Otieno, JA. However, I have the misfortune of disagreeing with my learned brother on the conclusions that he makes to the eect that this Court lacks jurisdiction to determine an application for leave to appeal to the Court against an order made by the High Court pursuant to the provisions of section 35 of the Arbitration Act - No 4 of 1995. 44. Having considered the provisions of section 35 of the Arbitration Act and section 75 of the Civil Procedure Act, I am satised that section 35 of the Arbitration Act does not take away the jurisdiction of either the High Court or the Court of Appeal to grant to a party leave to appeal from a decision of the High Court made pursuant to that section. That being my view of the matter I agree with the reasoning and the conclusions reached in the ruling of Omolo, JA. DATED AND DELIVERED AT NAIROBI THIS 7TH DAY OF APRIL 2006 R.S.C. OMOLO ………… JUDGE OF APPEAL E.O. O’KUBASU ………… JUDGE OF APPEAL J.W. ONYANGO-OTIENO ………… JUDGE OF APPEAL I certify that this is a true copy of the original. DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2006/382/eng@2006-04-07 12

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