Bomas of Kenya Limited v Standard Investment Bank Limited

The Court applied its own earlier decisions in Kenyatta International Convention Centre v Congress Rental South Africa and Okeno & Sons Building Contractors v Bukura Agricultural College, which hold that section 39 appeals to the High Court require prior agreement between the parties and that appeals to the Court of Appeal under section 39(3) lie only from decisions of the High Court exercising appellate jurisdiction under section 39(2). Since the High Court here was setting aside and enforcing an award under sections 35, 36 and 37, section 39(3)(b) was not available.

The Court applied the Supreme Court's holdings that judicial intervention in matters not specifically provided for by the Arbitration Act can only be countenanced in exceptional instances, and that an intended appeal not anchored within the four corners of section 35 should not be admitted. The applicant could not show the High Court stepped outside section 35. Additionally, the notice of appeal challenged only the dismissal of the set-aside application, not the order allowing enforcement.

The Court noted that section 35(3) imposes a three-month limit on applications to set aside an award, and that the applicant did not apply within that period. Following the Supreme Court's Nyutu Agrovet guidance, section 37 only provides grounds for refusal of recognition or enforcement of an award; it does not provide an alternative route to set aside an award for a party that missed the section 35(3) window. The summary nature of enforcement proceedings and the policy of minimal court intervention under section 10 of the Act reinforce this.

The Court held that once the prayer for leave failed, addressing the prayer for stay would serve no utilitarian value. The Court's discretion under Rule 5(2)(b) presupposes an appeal before it; since the intended appeal could not properly be instituted, the stay application necessarily fell away with the motion.