Does the Arbitration Act Cap 49 laws of Kenya and Rules thereof Allow for Review of Awards?

1. The Arbitration Act is silent on whether a review is possible.

2. Applicants in most cases where an attempt is made for review invoke the provisions of Articles 165, 159, and 50(1) of the Constitution, Rules 35 and 37 of the Chartered Institute of Arbitrators (Kenya Branch) Arbitration Rules, 2020, and all other enabling Provisions of the law.

3. In some instances, lawyers quote all the above as read together with Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules. The common general argument by practitioners is that:

a) The High Court has unlimited inherent jurisdiction under Article 165.

b) Thus, the court in exercising its judicial authority to give effect to that jurisdiction must be guided by the overreaching principle under Article 159(2)(c), which requires it to promote alternative forms of dispute resolution, including arbitration.

c) The Court cannot therefore pre-empt any person who has a right under Article 50(1) to have any dispute that can be resolved by the application of law to be decided in a fair hearing before a court or another independent and impartial tribunal or body.

1. I, however, want to clarify that the sort of review contemplated under the Civil Procedure Act must be a review in respect of which the Act itself allows an appeal but where one has not been preferred, or where the Civil Procedure Act itself does not allow an appeal.

2. Order 45 of the Civil Procedure Rules allows review of an Award or ruling on the basis of, inter alia, discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced at the time when the order was made.

3. However, our question remains whether an Arbitral Tribunal has jurisdiction to review its Interim Award, which I now proceed to answer.

4. Article 159 of the Constitution essentially addresses, inter alia, the aspects of justice being done to all, without undue regard to technicalities and affirming arbitration as a means of dispute resolution. However, the Article does not whittle the express statutory provisions of the Arbitration Act that define a Tribunal's powers, jurisdictional limitations, party autonomy, and the court's power of intervention in arbitral proceedings.

5. I now turn to Rules 35 to 37 and 42 of the Chartered Institute of Arbitrators (Kenya Branch) Arbitration Rules, 2020 that define what interim measures may be granted by a tribunal. The Rules read as follows:

Interim Measures

1. The Arbitral Tribunal may, at the request of a party, grant interim measures.

2. The Arbitral Tribunal has power to order a party, without limitation to:

a) Maintain or restore the status quo pending determination of the dispute;

b) Take action that would prevent, or refrain from taking action that is likely to cause,

(i) current or imminent harm or,

(ii) prejudice to the Arbitral process itself;

c) Provide a means of preserving assets out of which a subsequent award may be satisfied;

d) Preserve evidence that may be relevant and material to the resolution of the dispute;

e) Order the preservation, storage, sale, or other disposal of any property or thing under the control of any party and relating to the subject matter of the arbitration;

f) Order on a provisional basis, subject to final determination in an award, any relief which the Arbitral Tribunal may have power to grant in an award, including a provisional order for the payment of money or the disposition of property as between any parties; and

g) Order for security for any party's own costs, and to secure all or part of any amount in dispute in the arbitration.

1. Subject to Rule 42 below, at any stage of the arbitration prior to the Status Hearing, parties may deliver to the Arbitral Tribunal applications for interim rulings, awards, and/or directions. Such applications shall set out the grounds being relied upon and must have all supporting documents.

2. From the foregoing, it is clear that there is no power for review of an Award set out in paragraphs 35 to 37 of the Rules. Rule 42 does not empower a Tribunal to deal with any review application. One is guided by the ejusdem generis rule and by simple deduction, review does not fall within the parameters of interim measures under the Rules.

3. In fact, the Rules are confined to addressing interim measures restricted to the grant of injunctive relief and security for costs and payment of any amount in dispute. I have carefully read the entire Rules to discern if any power to review is set out in the Chartered Institute of Arbitrators (Kenya Branch) Arbitration Rules, 2020. I have found none.

4. As the parties chose to apply the Chartered Institute of Arbitrators (Kenya Branch) Arbitration Rules, 2020, this was perfectly in consonance with Section 29(1) of the Arbitration Act that reads:

   29. Rules applicable to substance of dispute

   (1) The arbitral tribunal shall decide the dispute in accordance with the rules of law chosen by the parties as applicable to the substance of the dispute.

   (2) The choice of the law or legal system of any designated state shall be construed, unless otherwise agreed by the parties, as directly referring to the substantive law of that state and not to its conflict of laws rules.

   (3) Failing a choice of the law under subsection (1) by the parties, the arbitral tribunal shall apply the rules of law it considers to be appropriate given all the circumstances of the dispute.

   (4) The arbitral tribunal shall decide on the substance of the dispute according to considerations of justice and fairness without being bound by the rules of law, only if the parties have expressly authorized it to do so.

   (5) In all cases, the arbitral tribunal shall decide in accordance with the terms of the particular contract and shall take into account the usages of the trade applicable to the particular transaction.

5. A simple search of the entire Arbitration Act No. 4 of 1995 and the Arbitration Rules of 1997 comes out empty on the word "review."

6. Section 34 of the Arbitration Act addresses the Tribunal's power to correct and interpret an award and also publish an additional award which has to be done within 30 days after receipt of the arbitral award, unless a different period of time has been agreed upon by the parties. This power can be exercised by a party upon notice in writing to the other party, request the arbitral tribunal:

   a) To correct in the arbitral award any computation errors, any clerical or typographical errors, or any other errors of a similar nature; and

   b) To clarify or remove any ambiguity concerning a specific point or part of the arbitral award.

7. If the tribunal considers a request made under subsection (1) to be justified, it shall, after giving the other party 14 days to comment, make the correction or furnish the clarification within 30 days whether the comments have been received or not, and the correction or clarification shall be deemed to be part of the award. The arbitral tribunal may correct any error of the type referred to in subsection (1)(a) on its own initiative within 30 days after the date of the arbitral award.

8. Section 34 of the Arbitration Act provided on additional award. It allows parties to agree or upon notice in writing to the other party, within 30 days after receipt of the arbitral award, request the arbitral tribunal to make an additional arbitral award as to claims presented in the arbitral proceedings but omitted from the arbitral award. If the request is justified, the tribunal can make the additional arbitral award within 60 days though it may extend, if necessary, the period of time within which it shall make a correction, give an interpretation or make an additional arbitral award under subsection (2) or (5).

9. Section 34 does not empower a Tribunal to review its decision as nowhere is that part set out in the section.

10. By adopting the Arbitration Act, it automatically follows that the subsidiary legislation (the Arbitration Rules, 1997) of the Arbitration Act are also binding. It is trite law that a party cannot contract out of a statute.

11. I have dealt with the Arbitration Rules, 2020. The question then arising is whether then the Arbitration Rules, 1997 permit a Tribunal to review its decision akin to that granted by Order 45 of the Civil Procedure Rules. The Rules do not give any such powers.

12. Rule 11 of the said 1997 Arbitration Rules provide that:

    So far as is appropriate, the Civil Procedure Rules shall apply to all proceedings under these Rules.

13. However, this provision does not at all draw the power of review from the Civil Procedure Act and such interpretation is not only flawed but erroneous for the following reasons that:

    a. Subsidiary legislation must not be ultra vires the powers of the substantive Act. As there is no power of review in the Arbitration Act, there is similarly no power of review expressly set out in the Arbitration Rules.

    b. Rule 11 of the Arbitration Rules confines itself to matters expressly set out in the Rules where applications are made under various provisions of the Arbitration Act where one can fall back on the Civil Procedure Rules.

    c. That is why the words "so far as is appropriate, the Civil Procedure Rules shall apply to all proceedings under these Rules" are used to limit the application of the Civil Procedure Rules save in specified instances. This proposition is supported by Section 40 of the Arbitration Act that defines the jurisdictional confines of the Rules. Review is not set out in Section 40 that reads:

    40. Rules The Chief Justice may make rules of Court for—

    (a) the recognition and enforcement of arbitral awards and all proceedings consequent thereon or incidental thereto;

    (b) the filing of applications for setting aside arbitral awards;

    (c) the staying of any suit or proceedings instituted in contravention of an arbitration agreement;

    (d) generally all proceedings in court under this Act.

14. The essence of an arbitral award is finality and expedition. If a party is dissatisfied with an Award—whether Final or Interim—recourse lies under Section 35 of the Arbitration Act that deals with the setting aside of Awards. This is the route that the Applicants ought to have taken.

15. The case of Matigari General Merchants Ltd & Anor. Vs: Nelly Wairimu Muthoni & Francis Muiruri Wainaina & Anor. Machakos High Court (Appellant Side) Civil Appeal No. 68 Of 2018 cited by most Applicants for the proposition that a court can review its judgment holds true for court decisions. The decision did not address the power of an arbitral tribunal to review its Award and is inapplicable to the issues with regard to review of Arbitral awards.

16. The case of Bellevue Development Company Limited v Vinayak Builders Limited & 2 others [2016] eKLR is relevant to answer the present issue. The court held:

    "The provisions which form the base of the court jurisdiction are Order 45 Civil Procedure Rules. Under the authority of owner of Motor Vehicle Lilian 'S' Case, jurisdiction is everything and court cannot make any step if it has no jurisdiction. It has to down its tools."

17. In the case of Anne Mumbihinga, the court of appeal held:

    "The provisions of Arbitration Act make it clear that it is a complete code except as regards the enforcement of an award/or decree where the Arbitration Rules 1997 apply the Civil Procedure Rules where appropriate in our view rules, line, hook and sinker to regulate arbitrations under the Act, it is clear to us that no application of Civil Procedure Rules would be regarded as appropriate if its effect would be to deny any awards speedy enforcement both of which are major objectives of arbitration. If follows that all the provisions invoked except S. 35 and 37 do not apply to give jurisdiction to the superior court to intervene and all the application filed against the award in the superior court should have been struck out by the court suo moto."

18. The aforesaid authority is binding to this court. Under Arbitration Act the review does not exist. S. 10 of Arbitration Act states that "except as provided in this Act, no court shall intervene in matters governed by this Act."

19. The provision of order 45 of the CPR is not among the rules imported to the Arbitration Act nor is the provision of S. 80 of Cap 21.

20. The court thus cannot invoke the provisions of the CPA/CPR to entertain review.

21. The Bellevue case confirms my conclusion that an Arbitral Tribunal does not have the power to review its decision save but to clarify, correct or make an additional award under Section 34 of the Arbitration Act.

Compiled and edited by

Robinson Nthuli Munyalo FCIArb

Advocate