Nyutu Agrovet Limited v Airtel Networks Limited
The bottom line
#Kenya's Court of Appeal confirmed that you cannot appeal to it against a High Court decision setting aside an arbitral award, except through section 39(3) of the Arbitration Act.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether in the absence of an express provision of a right of appeal in an arbitration agreement, a party to arbitral proceedings had a right of appeal to the Court of Appeal from a decision of the High Court given under section 35 of the Arbitration Act, 1995.
- 2.Whether the general jurisdiction to hear appeals conferred on the Court of Appeal by article 164 of the Constitution was distinct from a right of appeal.
- 3.Whether the Civil Procedure Rules would be applicable in arbitration proceedings.
Key legal issues
#Whether an appeal lies to the Court of Appeal from a High Court decision under section 35 of the Arbitration Act
No appeal lies. The right of appeal is granted by law and not by implication; section 35 is silent on appeal and its silence, read with section 39(3), shows a deliberate legislative choice to exclude further appeals.
All members of the bench held that a right of appeal must be expressly conferred by statute. Section 35 provides a closed catalogue of grounds for setting aside an award and is silent on further appeal, while section 39(3) expressly confers a conditional right of appeal. Reading the two together, the word 'notwithstanding' in section 39(3) presupposes that sections 10 and 35 bar appeals. Party autonomy and the finality principle under the UNCITRAL Model Law reinforce this.
Whether the Court of Appeal's constitutional jurisdiction under Article 164(3) is distinct from a right of appeal
Yes. Article 164(3) confers general jurisdiction to hear appeals but does not confer an automatic right of appeal in respect of every High Court decision; the right of appeal is vested by statute and may be ousted or circumscribed.
The court distinguished jurisdiction (the power of a court to hear and determine) from the right of appeal (the statutory entitlement enabling a litigant to invoke that jurisdiction). Illustrations included section 85A of the Elections Act, which would be unnecessary if Article 164(3) itself conferred the right of appeal, and Article 163(4) on appeals to the Supreme Court. A party must demonstrate which law donates the right of appeal.
Whether the Civil Procedure Act and Rules apply to arbitral proceedings
They do not displace the Arbitration Act. Rule 11 of the Arbitration Rules applies the Civil Procedure Rules only so far as appropriate, filling procedural lacunae, and cannot override sections 10 and 35; nor do sections 3A/3B of the Appellate Jurisdiction Act or section 66 of the Civil Procedure Act found a right of appeal.
The Arbitration Act is a specific, self-contained code on arbitration while the Civil Procedure Act provides general civil procedure; the general cannot prevail over the specific. Subsidiary legislation cannot override the parent Act. The overriding objective provisions complement, but do not replace, rules of procedure and cannot create a right of appeal where none exists.
Whether sections 10 and 35 of the Arbitration Act are unconstitutional or infringe access to justice
They are not unconstitutional. Arbitration is constitutionally recognised under Article 159; parties voluntarily choose it and its limits, and restricting court intervention does not obstruct access to justice.
The court held that parties who incorporate an arbitration agreement with a finality clause freely choose limited judicial participation and must embrace the consequences. Article 159 promotes alternative dispute resolution, and section 10 affirms rather than violates the Constitution. Ouster-clause case law on involuntary statutory limitation of access to courts does not readily extend to consensual arbitration.
Legal principles established
#- There is no right of appeal to the Court of Appeal from a decision of the High Court made under section 35 of the Arbitration Act; the right of appeal must be expressly conferred by statute and cannot be implied from statutory silence.
- The general jurisdiction of the Court of Appeal to hear appeals under Article 164(3) of the Constitution is distinct from, and does not itself confer, a right of appeal on a litigant.
- The only appeal to the Court of Appeal from a High Court decision on an arbitral award lies under section 39(3) of the Arbitration Act, where the parties so agreed before the award or the Court grants leave on a point of law of general importance.
- The Civil Procedure Act and Rules do not displace the clear provisions of the Arbitration Act; rule 11 of the Arbitration Rules applies the Civil Procedure Rules only so far as appropriate and cannot override sections 10 and 35.
- Sections 10 and 35 of the Arbitration Act, reflecting the UNCITRAL Model Law principle of limited judicial intervention and finality, are not unconstitutional.
Court orders
#- 1.The notice of motion dated 3rd May 2014 succeeds and is allowed.
- 2.Civil Appeal No 61 of 2012 is struck out.
- 3.Costs of the application and of the appeal awarded (the judgments state costs to the applicant in Mwera and M'Inoti's rulings, and to the respondent in Karanja and Musinga's rulings).
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote a separate ruling holding that section 35 of the Arbitration Act confers no right of appeal to the Court of Appeal; jurisdiction and right of appeal are distinct; the High Court's setting-aside decision is final; the motion to strike out is granted with costs to the applicant.
Accordingly, the prayer sought in the present motion to strike out the appeal herein is granted with costs to the applicant.p. 17
Wrote the judgment
Traced the history of Kenyan arbitration law and the UNCITRAL Model Law; held there is no right of appeal under section 35, the right of appeal must be conferred by statute and cannot be inferred; sections 10 and 35 are not unconstitutional; Civil Procedure Act/Rules do not displace the Arbitration Act; allowed the motion and struck out the appeal.
I think I have said enough to show that no appeal lies to this Court from the High Court under Section 35 of the Arbitration Act.p. 24
Wrote the judgment
Held Article 164(3) confers general jurisdiction but not an automatic right of appeal; section 39(3) provides the only route of appeal after a section 35 setting-aside decision; 'notwithstanding' must be given effect; allowed the application and would strike out the appeal with costs to the respondent.
I would allow the respondent#s application dated 3rd May, 2014 and strike out this appeal with costs to the respondent.p. 33
Wrote the judgment
Analysed the salient features of section 35 showing a deliberate policy of limited judicial intervention; distinguished jurisdiction from right of appeal; held the right of appeal is created only by section 39(3); found the ouster and Civil Procedure Act arguments unsustainable; would strike out the appeal with costs to the applicant.
Accordingly, I find that there is merit in the application before us. I would allow the same and strike out Civil Appeal No 61 of 2012 with costs to the applicant.
Wrote the judgment
Expressed full agreement with the reasoning and conclusions of Karanja, JA and added nothing.
I have had the advantage of reading in draft the Ruling of Karanja, JA. I am in full agreement with her reasoning and conclusions and, therefore, have nothing useful to add.p. 47
- On appeal from
- High Court
- Jurisdiction invoked
- Article 164 of the Constitution of Kenya, 2010; sections 3A and 3B of the Appellate Jurisdiction Act (cap 9)
Relief refused
#Nyutu's appeal against the High Court decision setting aside the arbitral award
No right of appeal lies to the Court of Appeal from a decision of the High Court under section 35 of the Arbitration Act; the right of appeal must be conferred by statute and cannot be implied.
Costs
Application allowed and appeal struck out with costs; the judgments are inconsistent - Mwera JA and M'Inoti JA award costs of the application to the applicant (Airtel), Karanja JA awards costs of the application to the applicant and costs of the appeal to the respondent (Nyutu), and Musinga JA awards costs to the respondent.
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.
There is no Right of Appeal from a decision of the High Court on an arbitral award under section 35 of the Arbitration Act.
The right to appeal is expressly granted by law and not by implication. A party had to show which law donated the right of appeal intended to be exercised.
Even if jurisdiction and the right of appeal might be referred to side by side or in the same breath, the two terms did not mean one and the same thing.
However, it had to be appreciated that such leave did not constitute the right to appeal. The right had to precede leave.
Properly interpreted, it meant quite the very opposite, namely that there was no right of appeal conferred by sections 10 and 35.
Accordingly, the prayer sought in the present motion to strike out the appeal herein is granted with costs to the applicant.
As Mwera, Musinga, M'Inoti, and J Mohammed JJA are in agreement with this conclusion, the Notice of Motion dated 3rd May 2014 succeeds and the same is allowed with costs to the applicant, with the result that Civil Appeal No 61 of 2012 is hereby struck out with costs of the Appeal to the respondent.
I would allow the respondent#s application dated 3rd May, 2014 and strike out this appeal with costs to the respondent.
Accordingly, I find that there is merit in the application before us. I would allow the same and strike out Civil Appeal No 61 of 2012 with costs to the applicant.
Issues in the judgment
#Conflicting costs orders among the separate rulings
Coram lists six judges but the judgment refers to a five judge bench
Inconsistent arbitral award figures across the rulings
M'Inoti JA dates the leave ruling 1st December 2014, inconsistent with the 2011 decision date
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (5)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Gatimu & 8 others v Kanyi t/a Kenya Projects Budget & Executive Homes[2023] KEELC 20659 (KLR)4 Oct 2023applied
- Basil & another v Safari Leisure Motels Ltd & 5 others[2023] KEELC 18926 (KLR)5 Jul 2023applied
- James Kariuki Kanyeki & another (The registered trustees suing on behalf of Kenya Railways Staff Retirement Benefits Scheme) v Blue Water Properties Limited & another[2023] KEELC 16497 (KLR)21 Mar 2023
- Thermos Hong Kong Limited v Doshi Ironmongers Limited[2022] KECA 544 (KLR)10 Jun 2022
- Judicial Service Commission & another v Rawal[2016] KECA 831 (KLR)29 Jan 2016distinguished
Cite this brief
#Cite this brief
Caselaw, "Nyutu Agrovet Limited v Airtel Networks Limited", Case Analysis (2015). Civil Appeal (Application) 61 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/1012/eng@2015-03-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.