[2004] KEHC 1296 (KLR)
The court held that Section 39(3) of the Arbitration Act, 1995, is explicit in requiring both the agreement of the parties and leave of the court for an appeal to lie from a High Court decision to the Court of Appeal. The use of the word 'and' between subsections (a) and (b) indicates that both conditions are...
Source-derived case information.
- Citation
- [2004] KEHC 1296 (KLR)
- Parties
- Plaintiff: Githunguri Dairy Plant Company Limited; Defendant: Ernie Campbell & Company Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 719 of 2003
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection
- Outcome
- application dismissed with costs to the respondent
- Legal Topics
- Arbitration Award Challenge, Leave to Appeal, Preliminary Objection, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Githunguri Dairy Plant Company Limited
Plaintiff
Ernie Campbell & Company Limited
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection
Legal Issues
- 1 Whether an appeal lies to the Court of Appeal from a High Court decision under Section 39(3) of the Arbitration Act without both parties' agreement and leave of court.
- 2 Whether the application for stay of execution pending appeal is competent in the absence of the respondent's consent to appeal.
Ratio Decidendi
The court held that Section 39(3) of the Arbitration Act, 1995, is explicit in requiring both the agreement of the parties and leave of the court for an appeal to lie from a High Court decision to the Court of Appeal. The use of the word 'and' between subsections (a) and (b) indicates that both conditions are mandatory. In this case, the applicant failed to obtain the respondent's agreement to appeal. Consequently, the application for stay of execution pending appeal was incompetent and had to be dismissed. The court emphasized that statutory requirements must be strictly adhered to in arbitration matters, and the absence of mutual agreement was fatal to the applicant's case.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application dated 8th July 2004 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA COMMERCIAL DIVISION, MILIMANI MIS. APPLICATION NO. 719 OF 2003 (0. S)
IN THE MATTER OF ARBITRATION ACT
AND
IN THE MATTER OF AN ARBITRATION BETWEEN ERNIE CAMPBELL & COMPANY LIMITED
AND
GITHUNGURI DAIRY PLANT COMPANY LIMITED
GITHUNGURI DAIRY PLANT COMPANY LIMITED ……………………...……..PLAINTIFF
VERSUS
ERNIE CAMPBELL & COMPANY LIMITED………………..................……….DEFENDANT
R U L I N G
The Respondent had filed a Preliminary Objection and sought to raise it before the hearing of the pending application hereof.
The Objection is in the following terms: -
“That under Section 39 (3) of the Arbitration Act, 1995, no appeal may lie against the decision of the High Court save in the circumstances therein set out. The parties have not agreed that an appeal may lie to the court of Appeal, and the application is therefore bad in Law. That the application should be dismissed with costs.”
The applicant by its application dated 15th September 2003 sought to set aside an arbitration award and an Order for retrial by the arbitrator or the court. The court ruled on that application on 29th June 2004 whereby the same was dismissed.
The applicant by its application dated 8th July 2004 is seeking stay of execution of the arbitration award pending appeal to the Court of Appeal, and also leave of this Court of Appeal.
It is that application that the Preliminary Objection is directed toward.
Mr. Kembi counsel for the Respondent argued that Section 39 (3) of the Arbitration Act is very clear that a party can only appeal from a High Court decision by, firstly obtaining the other party’s agreement/consent and secondly on obtaining leave of the court. Mr. Kembi argued that those two ingredients have to be present. In this present case, he said, parties had not agreed on the applicant filing an appeal and the applicant cannot therefore proceed with the appeal.
Mr. Mwiti for the applicant said that appeal lies with leave of the court which was why the applicant had filed its application dated 8th July 2004. He said that even if the High Court did not give that leave the applicant could obtain it from the Court of Appeal since a Notice of Appeal was filed on 1st August 2004.
Section 39 (3) provides that an appeal shall lie from the High Court: -
(a) “If the parties have so agreed that an appeal shall lie; and
(b) the High Court grants leave to appeal, or failing leave by the High Court, the Court of Appeal grants special leave to appeal; and on such appeal the court of Appeal may exercise any of the powers which the High Court could have exercised under Sub Section (2).”
Consideration of the aforesaid subsection (3) I do agree that the two portions of subsection (3) (a) and (b) have to be satisfied for an appeal to be filed in the Court of Appeal; the use of the word ‘and’ between (a) and (b) make it clear that they both have to be satisfied. The applicant has failed to obtain the agreement to lodge the appeal from the Respondent and accordingly the application filed on behalf of the respondent dated 8th July 2004 must fail.
The order of this court is that the application dated 8th July 2004 is dismissed with costs to the respondent.
Dated and delivered this 1st day of December 2004.
MARY KASANGO
AG JUDGE