The Supreme Court of Kenya, on Friday 6th December 2019, circumscribed a narrow jurisdiction for the Court of Appeal, to be where the High Court makes a manifest error of law. In its judgment in Nyutu Agrovet Limited v Airtel Networks Kenya Limited; Chartered Institute the Court observed that a party aggrieved by the decision of the High Court on an application seeking to set aside an arbitral award, had no automatic right of appeal to the Court of Appeal.
The Court found that an appeal may lie from the High Court to the Court of Appeal only by leave of Court, on a determination made under Section 35, Arbitration Act. The leave may be granted where the High Court, in determining whether to set-aside an arbitral award, has stepped outside the grounds set out in the said Section and thereby made “a decision so grave, so manifestly wrong and which has completely close the door of justice to either of the parties.”
This judgment creates the apparent risk of completely negating the whole essence of arbitration as an expeditious and efficient way of delivering justice, alternative often laborious and onerous litigation process.
Usefully the Supreme Court also found that “alleged breaches of the Constitution cannot be properly introduced by way of an application to set aside an arbitral award. Breaches of the Constitution are properly governed by Articles 165(3) and 258 of the said Constitution and cannot by litigational ingenuity be introduced for adjudication by the High Court by way of invocation of Section 35 of the Arbitration Act.”