In Kenya, arbitration matters can go on appeal under certain conditions and circumstances. The appeal process is governed by the Arbitration Act of Kenya, which sets out the grounds and procedures for appealing an arbitral award.
First, an appeal can be made on the grounds of a serious irregularity in the arbitration proceedings. According to Section 34 of the Arbitration Act, a serious irregularity in the arbitration proceedings includes any breach of the rules of natural justice, fraud, or misconduct by the arbitrator. For example, in the case of Haji v. Chai, the High Court of Kenya held that there was a serious irregularity in the arbitration proceedings because the arbitrator had failed to disclose a potential conflict of interest.
Second, an appeal can be made on the grounds of an error in law or fact. According to Section 35 of the Arbitration Act, an error in law or fact includes any mistake or misapplication of the law or any factual error or misapplication of the evidence. For example, in the case of KCB Bank v. Kenya Ports Authority, the Court of Appeal of Kenya held that there was an error in fact because the arbitrator had misapplied the evidence in determining the amount of damages.
Third, an appeal can be made on the grounds of public policy. According to Section 36 of the Arbitration Act, an award can be set aside on the grounds of public policy if the award is contrary to the fundamental principles of justice, morality, or public order. For example, in the case of M/S Crystal Clear Glass Limited v. The National Construction Authority, the High Court of Kenya held that the award was contrary to public policy because it had awarded damages for a breach of contract that was not supported by the evidence.
Fourth, an appeal can be made on the grounds of the award being in conflict with the Act. According to Section 37 of the Arbitration Act, an award can be set aside if it is in conflict with the provisions of the Act. For example, in the case of Tullow Oil Kenya Limited v. Heritage Oil Kenya Limited, the High Court of Kenya held that the award was in conflict with the Act because it had failed to take into account the principle of good faith in determining the amount of damages.
It is important to note that the grounds for appeal are limited, and parties must prove that there was a serious irregularity, error in law or fact, public policy violation, or conflict with the Act. Additionally, the appeal must be filed within 30 days of the date the award was made, and the parties must first exhaust the internal remedies provided by the arbitration institution before taking the matter to court.
In conclusion, arbitration matters in Kenya can go on appeal under certain conditions and circumstances. Parties can appeal on the grounds of a serious irregularity in the arbitration proceedings, an error in law or fact, public policy violation, or conflict with the Act. However, the grounds for appeal are limited and the parties must prove that there was a violation, the appeal must be filed within 30 days of the award and the internal remedies must be exhausted before taking the matter to court. It is advisable for parties to seek legal counsel before proceeding with an appeal to ensure that the appeal process is done in accordance with the law.
Shafiq Taibjee
Lawyer/Arbitrator/Mediator
Islamic Arbitrator & Expert
Honorary Fellow IICRA -UAE