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Court Involvement in Consensual Arbitration in Kenya: Case Review

MISC. CIVIL CAUSE NO. 131 OF 2016: Gooodison Sixty One School Limited v Symbion Kenya Limited


Background

The appellant and respondent were in dispute in connection with the construction of a school which was being developed by the applicant and the respondent was the architect. Pursuant to an arbitration agreement between the parties, the dispute was referred to arbitration before a sole arbitrator. The applicant had filed a challenge before the arbitrator seeking his disqualification on the grounds that he failed to disclose circumstances that were likely to give rise to justifiable doubts as to his impartiality or independence.


The arbitrator dismissed the applicant’s challenge stating that he was properly in office and published his final award and costs of award ultimately concluding the arbitration. Aggrieved by the arbitrator decision the applicant sought orders from the High Court to have the arbitrator dismissed and the award nullified. The application was dismissed which led the applicant to seek a review of the High Court’s decision.


Analysis

Section 14(5) of the Arbitration Act 1995 (revised 2012), states that the High Court’s decision on upholding or rejecting a challenge to remove an arbitrator is final and not subject to appeal. Since the Act is mute on the subject of review, the applicant suggested that the Civil procedure rules under section 3A of the Civil procedure Act which provides for the High Court’s original inherent jurisdiction could be applicable in the necessity of justice. The Applicant also relied on articles 50, 159 and 165 of the Constitution of Kenya 2010, however there was nothing substantive to indicate they were intended to promote arbitration outside its fundamental character. The court deliberated whether a decision of the high court in this case could possibly be reviewed.


The review requested where no appeal was allowed by the Civil Procedure Act 2012 (revised 2018). It had a provision in section 75 touching on appeals from orders in, inter alia, court-annexed arbitration, but nothing was stated concerning appeals in respect of consensual arbitration. Although all decrees and orders of the High Court were subject to the appellate jurisdiction of the Court of Appeal, there are exceptions where the Civil Procedure Act itself prohibited the same. The instances where the prohibition was made in the Civil Procedure Act were set out in it and did not include decrees or orders made in respect of consensual arbitration. However, to fill this gap, Section 10 as read with Section 14(5) (6) of the Arbitration Act is clear on when court intervention is allowed on proceedings governed by the Act and if so, the finality of the decision.


The court stated the Arbitration Act of Kenya is an adaptation of the United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration 1985. Section 2 of the Arbitration Act makes the Act applicable to both international and domestic arbitration. The court stated that this is intended to ensure, as far as possible, similar standards locally as are available in respect of international arbitration brought to bear both in the practice and interpretation of the law of arbitration. The court further stated that in In the Explanatory Note by the UNCITRAL Secretariat on the 1985 Model Law on International Commercial Arbitration as amended in 2006 annexed as part 2 to the amended Model Law, there is an explanation on the limited role of the courts in arbitration:

“Recent amendments to arbitration laws reveal a trend in favor of limiting and clearly defining court involvement in

international commercial arbitration. This is justified in view of the fact that the parties to an arbitration agreement make a

conscious decision to exclude court jurisdiction and prefer the finality and expediency of the arbitral process.”


The court further highlighted Section 10 of the Arbitration Act 1995 which states;‘Except as provided in this Act, no court shall intervene in matters governed by this Act.’In this regard, the Court made reference to the official commentary by the UN Secretary-General contained in the report A/CN.9/264 (reproduced in the Yearbook of the United Nations Commission on International Trade Law, 1985, Volume XVI, United Nations publication) p112. Which justifies why the listing of instances where court intervention may be allowed is crucial to excluding any general or residual powers given to court in a domestic system that are not defined in the Model Law.


The Commentary states;

“Consequently, the desired balance between the independence of the arbitral process and the intervention by courts should be sought by expressing all instances of court involvement in the Model Law but cannot be obtained within article 5 or by its deletion. The Commission may, thus, wish to consider whether any further such instance need be included, in addition to the various instances already covered in the present text. These are not only the functions entrusted to the Court specified in article 6, the functions referred to in articles 11 (3), (4), 13 (3), 14 and 34 (2), but also those instances of court involvement envisaged in articles 9 (interim measures of protection), 27 (assistance in taking evidence), 35 and 36 (recognition and enforcement of awards).”


In this case Section 10 of the Arbitration Act 1995 expressly limits the inherent original jurisdiction of the High Court as provided in Section 3A of the Civil Procedure Act 2012.

In its ruling the court held there is no provision for the review of a Judge’s ruling under Section 14 of the Arbitration Act. Application was dismissed with costs to the respondent.


The Position of the court reflects on its constitutional mandate to promote alternative means of dispute resolution by promoting independence of arbitration proceedings and limiting court intervention. The court adopted the lex specialis doctrine in coming to this decision reflecting the complete nature of the Arbitration Act 1995 in governing arbitration proceedings.





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