In this case, the court assessed the merits of an application seeking to set aside an arbitral award of Kshs. 526,720,698.50/= made in favour of Nyutu (The Respondent) under Section 35 of the Arbitration Act (the Act). After hearing the parties, in a ruling dated 1st December 2011, Kimondo, J. identified three issues: whether the arbitral award dealt with a dispute not contemplated by the parties; whether the arbitrator dealt with a dispute outside the terms of reference to arbitration; and, whether the award was in conflict with public policy. The learned judge ultimately set aside the arbitral award in its entirety.

In this case, the court assessed the merits of an appeal which sought to set aside the ruling of the High Court setting aside the Arbitral Award. The matter was presented before the Supreme Court to determine whether there is a right of appeal to the Court of Appeal under section 35 of the Arbitration Act. The Supreme Court affirmed this right but limited the circumstances under which it can be exercised to special cases where a manifestly unfair determination has been made by the High Court. The Supreme Court emphasized that this circumscribed and narrow jurisdiction should be exercised sparingly, only in the clearest of cases. The court remitted the case back to the Court of Appeal to determine in limine, whether the threshold for admitting Nyutu’s appeal has been met and if the appeal before it ought to be heard at all.

A similar discussion was held in the case of Synergy Industrial Credit Limited v Cape Holdings Limited (Petition 2 of 2017) [2019] KESC 12 (KLR) (6 December 2019) (Judgment) where the Supreme Court, determined a Petition appealing the Ruling of the Court of Appeal where the Court held that it had no jurisdiction to hear appeals from decisions of the High Court arising from arbitration proceedings seeking to set aside an arbitral award under Section 35 of the Arbitration Act. The court held that there is generally no express right of appeal against the decision of the High Court in setting aside or affirming an award. Leave to appeal would, however, only be granted in very limited circumstances where there is unfairness or misconduct in the decision-making process and in order to protect the integrity of the judicial process. In addition, leave would be granted in order to prevent an injustice from occurring and to restore confidence in the process of administration of justice.

More recently in a Judgement delivered on 09/05/2024, the Court of Appeal, on the directions of the Supreme Court in Nyutu Agrovet Limited v Airtel Networks Kenya Limited; Chartered Institute of Arbitrators Kenya Branch (Petition 12 of 2016) [2019] KESC 11 (KLR) was tasked with determining in whether the threshold for admitting Nyutu’s appeal has been met and if the appeal before it ought to be heard at all. The court of appeal declined to grant the Appellant leave to appeal against the decision of the High Court setting aside an arbitral award on grounds that the Appellant had not persuaded the Court of Appeal that they fell within the very limited window of appeal. The court ultimately held as follows ‘the appellant has totally failed to bring its case within this Court’s circumscribed and narrow jurisdiction for granting leave, which should be sparingly exercised and only in the clearest of cases’.

The above decision was made notwithstanding the fact that the High court, in its ruling delivered on 01/11/2021, had already interfered with and set aside part of the Arbitral Award made in Nyutu’s favour. Where then does this leave the aggrieved Appellant? While the court in the above Judgement underscores the limited window granted for leave to appeal to the Court of Appeal, by denying the Appellant leave to appeal, the court effectively closes the doors of justice on the Appellant leaving them with no substantive means of redress.