Centurion Engineers & Builders Limited v Kenya Bureau of Standards
The bottom line
#Kenya's Court of Appeal cleared Centurion Engineers to challenge a High Court decision that overturned a Ksh. 384 million arbitration award in its favour.
What this practically means
#Executive summary
#Key legal issues
#The two-limb test for leave to appeal under Section 39(3) of the Arbitration Act
An applicant must satisfy the Court that there is a point of law of general importance and that its determination will substantially affect the rights of one or more of the parties; the second limb was satisfied on the facts because an award of over Ksh. 384 million was at stake.
The Court read Section 39(3) as imposing two cumulative requirements. On the second limb, it held that the outcome of the intended appeal would directly affect both parties' rights: if the appeal succeeded the respondent would pay the award; if it failed the applicant would suffer loss. The test at the leave stage is prima facie demonstration only.
Criteria for determining whether a point of law is of general importance
The categories are not closed; the point must be a point of law, substantial, arguable, contentious, arising from unsettled or contradictory jurisprudence, and affect a considerable number of persons.
Borrowing from the Supreme Court's criteria for a matter of general public importance in Hermanus Philipus Steyn v Giovanni Gneccchi Ruscone, the Court held that a point of law is of general importance if it transcends the particular case and bears significantly on public interest. Conflicting High Court decisions on the same provision constitute prima facie demonstration of general importance.
Jurisdiction to grant leave to appeal against a High Court decision setting aside an arbitral award
The Court has jurisdiction to grant leave under Section 39(3) notwithstanding contrary decisions; it adopted its own reasoning in Kenya Bureau of Standards v Geo-Chem Middle East that aggrieved parties were not intended to be left without recourse to appeal.
Acknowledging conflicting decisions of the Court and the pending Supreme Court decision in Nyutu Agrovet v Airtel, the Court held that pending that decision it has jurisdiction to grant leave. It distinguished leave under Section 39 from leave under Section 35, granting leave only under the former.
Legal principles established
#- Leave to appeal from a High Court decision on an arbitration award under Section 39(3) of the Arbitration Act requires demonstration of two limbs: a point of law of general importance, and that its determination will substantially affect the rights of one or more parties
- At the leave stage an applicant need only make a prima facie demonstration; the merits of the intended appeal are not argued
- A single point of law of general importance suffices on an application under Section 39(3); conflicting jurisprudence from the superior courts renders a point of law one of general importance
- A point of law is of general importance if it transcends the circumstances of the particular case, is substantial, and its determination has a significant bearing on public interest
Court orders
#- 1.Leave to appeal to the Court of Appeal granted to the applicant from the decision of the High Court (Tuiyot J.) delivered on 9th December 2016 in HCCC No. 506 of 2012
- 2.Applicant to file the Record of Appeal within 30 days from the date of the Ruling
- 3.Costs of the application to abide the outcome of the intended appeal
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 506 of 2012
- Jurisdiction invoked
- Section 39(3) of the Arbitration Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Centurion Engineers & Builders Limited v Kenya Bureau of Standards", Case Analysis (2018). Civil Application No. 282 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/84/eng@2018-11-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.