Background facts
1. The two disputants entered into an agreement christened Revenue Sharing agreement dated 2/1/2017 which incorporated an arbitration clause which demanded that all disputes between the parties be refereed to arbitration.
2. A dispute arose, parties were unable to have it amicably resolved, could not mutually appoint an arbitrator and therefore, in accordance with the agreement, approached the Chartered Institute of Arbitrators, Kenya Branch to effect the appointment. The institute appointed Mr. David M Mereka t/a Mereka & Co. Advocate to be the sole arbitrator
3. At the conclusion of the arbitral proceeding the sole arbitrator rendered an award in favour of Dr. Niska Sabra as follows;
a) Kshs.47,910 being revenue share for a period 2017 – 2020 Kshs.4,045,689.50 as refundable Expenses in CMCC No.3338 of 2018. The two sums aggregate at Kshs.51,956,323.50/=
b) Interest in the sum of Kshs.54,660, 673 to accrue at the rate of 12% from 16/2/2021 till payment in full
c) Costs of the arbitrator in the sum of Kshs.1,151,150/= with interest at 6% from the date of the final award till payment in full of which the applicant would be entitled to a refund of Kshs.575,575/=.
d) Costs of the arbitral proceedings to the applicant to be assessed by the sole arbitrator or a bill of costs being filed.
4. That award definitely pleased the applicant, (henceforth the applicant) who sought its enforcement but in equal measure aggrieving the Respondent, (henceforth the obligant), who sought to have it set aside.
5. This determination is thus on the two applications; the chamber summons for the enforcement of the award dated 31. 01.2024 and the notice of motion for setting aside dated 16.02.2024.
6. The court considers the two applications to be the converse face of each other, and shall seek to determine the application for setting aside first and only if it fails, will the court seek to consider the application for recognition and enforcement.
Application for setting aside
7. The application was initiated by a chamber summons dated 10/2/2024 and supported by an affidavit sown by Mr. Vikas Galot, the executive officer of the applicant.
8. The grounds disclosed on the face of the application and in the affidavit of support to premise the application are that; the sole arbitrator conducted its proceedings in a biased and impartial manner by robbing the applicant of the reasonable opportunity to be heard and present his case in violation of the dictates of section 33 (2) a (v) of the Act; failed to give due consideration to the evidence and submissions offered including the fact that a substantial portion of the claim by the applicant were rejected by the paying entities and where thus not recoverable; and lastly, that there was no demonstration that the applicant had in fact rendered the services as alleged. In particular the arbitration is faulted for having interfered with the right to cross examination on the basis that the applicant was made to shed eyes upon intense cross examination. The affidavit in support then annexed documents which included the final award and the agreement as exhibits.
9. When served with the application for recognition and enforcement of the award, the applicant filed both Further Affidavit in support and a Replying affidavit in which it opposed the enforcement on the basis that the arbitration was obviously biased and prejudiced against the Applicant in the manner the proceedings were conducted and the manner evidence tendered was casually considered. The proceeding at arbitration and the final award were exhibited as exhibits to support the assertions. In the grounds of opposition, the position taken is that the applicant was in haste to pursue enforcement before the lapse of the time allowed for applying to set aside, purposely to look out the applicant from exercising its statutory rights.
Application for recognition and enforcement
10. By her application dated the 31/2/2024, the applicant seeks the recognition and enforcement of the award by way of entry of judgment in the sum of Kshs.51,956,323.50/= with interests thereon at 16% per annum from the 16/2/2024 till payment in full together with costs incurred in the arbitration in the sum of Kshs.161,400/= with interest thereto at 12% pa from 22/1/2024 till payment in full. The application is premised on the reasons that she has an award in her favour which has remained unsettled. The agreement providing for arbitration and the final award were exhibited as exhibits to the Affidavit filed in support. With the leave of the court, the applicant filed a supplementary affidavit whose tenure and gist were to respond to the application for setting aside, controvert the assertions in the replying affidavit and also correct the erroneous reference to the award, as interim, on the face of the chamber summons.
11. On the accusation for bias, it is underscored that the court should accord with the objectives of arbitration to enforce party autonomy and oust or at least, limit the liberty by the court to interfere with the award made on arbitration.
12. It is then contended that the statutory grounds for setting aside an award are well defined and the obligant has not brought itself within those grounds but rather put forth only fanciful and peripheral issues which do not suffice for setting aside of an award.
13. On the specific allegations on bias, the obligant is faulted for engaging in delaying tactics and that throughout the trial it never challenged the impartiality of the arbitrator. In addition, the applicant contends that the test for impartiality adopted by the statute is stringent and goes beyond a party merely alleging loss of confidence on the arbitrator; one must demonstrate actual bias or prejudice. In this matter, the applicant asserts, the allegations of bias are not in congruence with the record of goings on in the proceedings which show that the arbitrator outrightly indulged the obligant by allowing late discovery and recalling witness who had testified earlier for cross-examination. On the discernment in the award, the applicant avers that the reasoning and conclusion in the award are in-depth and beyond reproach.
14. To the applicant it is not open for the court to revisit findings of fact as established by the arbitrator. The obligant was reminded to blame self for failure to lead relevant evidence. The application to set aside was termed misconceived, unmerited and a good candidate for dismissal while that for recognition and enforcement was deemed wholly merited and deserving to be allowed as prayed with costs to the applicant.
Set up, Issues, analysis and Determination
15. The court has had the chance to read the two applications on record, the affidavits filed in support and opposition to both and the rival submissions by both sides as well as the authorities cited in support of each side. Having done that, and with appreciation that there are two applications which seek converse orders of the other, it shall start with the application for setting aside determine the same and only proceed to the application for enforcement in the event that the setting aside is declined.
16. In every application for setting aside an arbitral award, the court proceeds from the very foundation and attribute of arbitration law that it is grounded upon the principle of party autonomy on choice of the forum, limits the intervention by court to the only statutory grounds of intervention and that there remains the need to achieve finality of the award.
17. In this matter the obligant urges the court to set aside the award on the allegations of bias in the manner the arbitral proceedings were conducted and concluded. It is alleged that the arbitrator displayed an open bias in the manner and way he addressed the applicant and capped that bias with failure to adequately consider the evidence led that would show that the claim was not proved. Specific reference is made to two instances the record reveals the arbitrator to have been swayed and manipulated by emotions expressed by the applicant which the obligant. The recorded instances are when the arbitrator assured the applicant that no intimidating questions would be allowed, that the process would remain civil adding that he arbitrator and the counsel would be there for her. The second instance is when the counsel for the obligant was asked to avoid asking questions that led the applicant into shedding tears. On when emotions may amount to bias to vitiate proceedings, the obligant cites Sobeth Development Ltd vs south Nyanza Sugar Company Ltd (2010) eKLR
18. On the appraisal of the evidence led, the obligant considers that as demonstration of not only bias but also undue influence and cites the decisions in Simon Taveta vs Mercy Mutitu Njeru (2014) eKLR, Ezekiel Osugo Angwenyi Vs National Industrial Credit Bank Ltd (2017) eKLR and Godison Sixty-One School Ltd Vs Symbion Kenya Ltd (2018) eKLR.
19. On its part, the applicant maintains that the thresholds for setting aside an award have not been made and urges the court to be slow in intervening outside the parameters set by the statute. In particular, the applicant points out that while the application is apparently brought on grounds of fraud and bribery, the material availed abandons that line and concentrates on bias. The applicant argues that the window for setting a side an award is circumscribed by the statute at section 35 and leaves no room for adventure beyond the statute. The decision in Midco Holdings Ltd Vs Summit Textiles (EA) Ltd for the proposition of the law that an applicant has no liberty but to confine self to the legal parameters set by the statute.
20. On bias, the applicant sees the fault as a challenge on the suitability of the arbitrator envisaged under sections 13 and 14 of the Act which should have been taken up before the arbitrator but was never so taken up. The same is thus viewed belated, flippant and unmerited to justify the prayer for setting aside. The decision in West Park Ltd Vs Villa care Ltd was cited for the proposition that for a claim of bias to succeed, it must be grounded on existing and justifiable circumstances, not upon some fanciful or imagined doubt limited to the applicant. That the test is stringent and measures to the standards of recusal of a judge so that abuse is kept at bay.
21. On undue influence by emotional conduct by the applicant, the position taken is that the applicant had indeed been harassed by harsh cross-examination leading to the proceedings being halted.
22. On the last issue of failure to adequately consider and apply the evidence led, the applicant takes the view and contends that the arbitrator is the master of the facts and it is not open to the court, being not appellate, to upset the award on grounds that the arbitrator misapprehended the contract, the law or on the findings of fact. For that proposition, the applicant cites the decisions in National Agricultural Export Development Board vs Gargill Kenya Ltd (2014) eKLR, Mahican Investments Ltd Vs Giovanni Gaida (2005) eKLR, Rai Vs Rai (2007) eKLR and Nairobi Golf Hotels Ltd Vs Floor Company Ltd (2015) eKLR.
23. The submissions conclude by citing the Court of Appeal in Nyuttu Agrovet Vs Airtel Networks Ltd (2015) eKLR on the rationale behind the limited intervention by court on arbitral proceedings being the principle of party autonomy.
24. The sole issue in the application for setting aside is whether the obligant has brought himself within the bounds of section 35(2) vi of the Act. From the beginning the court agrees with the applicant that, there has not been placed any material before the court to suggest, let alone prove, fraud, bribery or corruption. The court thus proceeds from the stand point that the award is challenged on the basis that the arbitrator displayed bias against the obligant by unduly protecting the applicant having been manipulated by the immotive expressions of the applicant which then led him to cursorily consider the evidence in favour of the obligant. In other words, the court poses the question, has there been demonstrated undue influence upon the arbitrator by matter extraneous to the dispute he was bound to resolve.
25. A reading of the record before the arbitrator shows that in at least two instances the arbitrator expressed sympathy to the applicant in a manner pointing that her breaking down during cross examination deserved protection from the tribunal. The issue the court has to grapple with is whether such is sufficient proof of bias that deems undue influence upon the tribunal.
26. For this court, the nature of influence that would invite intervention by the court must be the kind that is ignoble, improper and thus unjust for the due adjudication of the dispute. The court appreciates that many times, litigants and witnesses express different emotions at trial for different reasons. Some parties would act spontaneously when triggered by happenings at the proceedings or those connected to the proceedings. Others may however act in a predetermined manner in order to whip the human and emotional reactions of the tribunal. Such will always happen and the tribunal or courts have no way of stamping them out. The adjudicator whenever faced with such a scenario must be deliberate in shielding itself from being swayed and compromised from the duty to be impartial.
27. As a system of justice, even when voluntarily chosen by parties, arbitration must serve the course and meet the ends of justice. It cannot, for example, be immune from scrutiny by the court when an outright unfairness, negating the constitutional right to fair hearing, is apparent on its record. In such a case the court must answer to is duty to protect the integrity of the decision-making process through arbitration.
28. Because adjudicative justice remains justice wherever administered, and the primary duty of every court system is to do justice, a demonstration of undue influence that compromises justice should invite intervention of the court as a matter of inherent duty. Thus, in Kenya, while it is agreed that party autonomy and finality of arbitration are foundational cornerstones of the statute, demonstrated unfairness invites intervention by the court even at the point of appeal. 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) (6 December 2019) (Judgment) did set the law on intervention by the court thus:-
“With regard to jurisdictions that grant leave to appeal, Courts have held that leave to appeal may be granted 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.
…We take the further view that from our analysis of the law and, the dictates of the Constitution 2010, Section 35 should be interpreted in a way that promotes its purpose, the objectives of the arbitration law and the purpose of an expeditious yet fair dispute resolution legal system. Thus, our position is that, as is the law, once an arbitral award has been issued, an aggrieved party can only approach the High Court under Section 35 of the Act for Orders of setting aside of the award. And hence the purpose of Section 35 is to ensure that Courts are able to correct specific errors of law, which if left alone would taint the process of arbitration. Further, even in promoting the core tenets of arbitration, which is an expeditious and efficient way of delivering justice, that should not be done at the expense of real and substantive justice.” (Emphasis provided)
29. The court is guided that in handling this request for its intervention, it has the duty to correct errors of law which if left to stand would taint arbitration as a recognised and respected alternative dispute resolution mechanism. The court takes the view and learning that the need to protect party autonomy and finality of the process remain overbearing and compelling only when the award passes the test of being fair and just.
30. Applying the foregoing position of the law to the facts of this case, and while reiterating that no material was produced to prove, fraud bribery and corruption, there is sufficient material demonstrating that the tribunal in expressing its empathy with the applicant, compromised its duty to remain impartial in the manner that it later dealt with the totality of the evidence that showed that there was an element of breach by the applicant of the Revenue Sharing Agreement and that some of the invoices had been rejected.
31. The court finds that the applicant successfully and unduly influenced the arbitrator by the manner she narrated having been abused by Mr Gallot and the aggressive manner cross examination was conducted to the extent that the applicant shed tears. That influence negated the fair and just adjudication of the dispute. It thus renders the award unfair and unjust and invites the courts intervention for purposes of reinstating the purpose of the arbitration law and practice.
32. The upshot of the foregoing conclusion is that the award is set aside. The costs of the application is awarded to the obligant.
33. Because it was the choice of parties that the dispute be determined by arbitration, this matter is remitted for fresh arbitration before a different arbitrator.
34. The application to set aside having succeeded, there is no award to be recognised and enforced and therefore it follows that the application dated 31.01.2024 also fails.
Dated, signed and delivered online, this 28th day of August, 2024
1. The two disputants entered into an agreement christened Revenue Sharing agreement dated 2/1/2017 which incorporated an arbitration clause which demanded that all disputes between the parties be refereed to arbitration.
2. A dispute arose, parties were unable to have it amicably resolved, could not mutually appoint an arbitrator and therefore, in accordance with the agreement, approached the Chartered Institute of Arbitrators, Kenya Branch to effect the appointment. The institute appointed Mr. David M Mereka t/a Mereka & Co. Advocate to be the sole arbitrator
3. At the conclusion of the arbitral proceeding the sole arbitrator rendered an award in favour of Dr. Niska Sabra as follows;
a) Kshs.47,910 being revenue share for a period 2017 – 2020 Kshs.4,045,689.50 as refundable Expenses in CMCC No.3338 of 2018. The two sums aggregate at Kshs.51,956,323.50/=
b) Interest in the sum of Kshs.54,660, 673 to accrue at the rate of 12% from 16/2/2021 till payment in full
c) Costs of the arbitrator in the sum of Kshs.1,151,150/= with interest at 6% from the date of the final award till payment in full of which the applicant would be entitled to a refund of Kshs.575,575/=.
d) Costs of the arbitral proceedings to the applicant to be assessed by the sole arbitrator or a bill of costs being filed.
4. That award definitely pleased the applicant, (henceforth the applicant) who sought its enforcement but in equal measure aggrieving the Respondent, (henceforth the obligant), who sought to have it set aside.
5. This determination is thus on the two applications; the chamber summons for the enforcement of the award dated 31. 01.2024 and the notice of motion for setting aside dated 16.02.2024.
6. The court considers the two applications to be the converse face of each other, and shall seek to determine the application for setting aside first and only if it fails, will the court seek to consider the application for recognition and enforcement.
Application for setting aside
7. The application was initiated by a chamber summons dated 10/2/2024 and supported by an affidavit sown by Mr. Vikas Galot, the executive officer of the applicant.
8. The grounds disclosed on the face of the application and in the affidavit of support to premise the application are that; the sole arbitrator conducted its proceedings in a biased and impartial manner by robbing the applicant of the reasonable opportunity to be heard and present his case in violation of the dictates of section 33 (2) a (v) of the Act; failed to give due consideration to the evidence and submissions offered including the fact that a substantial portion of the claim by the applicant were rejected by the paying entities and where thus not recoverable; and lastly, that there was no demonstration that the applicant had in fact rendered the services as alleged. In particular the arbitration is faulted for having interfered with the right to cross examination on the basis that the applicant was made to shed eyes upon intense cross examination. The affidavit in support then annexed documents which included the final award and the agreement as exhibits.
9. When served with the application for recognition and enforcement of the award, the applicant filed both Further Affidavit in support and a Replying affidavit in which it opposed the enforcement on the basis that the arbitration was obviously biased and prejudiced against the Applicant in the manner the proceedings were conducted and the manner evidence tendered was casually considered. The proceeding at arbitration and the final award were exhibited as exhibits to support the assertions. In the grounds of opposition, the position taken is that the applicant was in haste to pursue enforcement before the lapse of the time allowed for applying to set aside, purposely to look out the applicant from exercising its statutory rights.
Application for recognition and enforcement
10. By her application dated the 31/2/2024, the applicant seeks the recognition and enforcement of the award by way of entry of judgment in the sum of Kshs.51,956,323.50/= with interests thereon at 16% per annum from the 16/2/2024 till payment in full together with costs incurred in the arbitration in the sum of Kshs.161,400/= with interest thereto at 12% pa from 22/1/2024 till payment in full. The application is premised on the reasons that she has an award in her favour which has remained unsettled. The agreement providing for arbitration and the final award were exhibited as exhibits to the Affidavit filed in support. With the leave of the court, the applicant filed a supplementary affidavit whose tenure and gist were to respond to the application for setting aside, controvert the assertions in the replying affidavit and also correct the erroneous reference to the award, as interim, on the face of the chamber summons.
11. On the accusation for bias, it is underscored that the court should accord with the objectives of arbitration to enforce party autonomy and oust or at least, limit the liberty by the court to interfere with the award made on arbitration.
12. It is then contended that the statutory grounds for setting aside an award are well defined and the obligant has not brought itself within those grounds but rather put forth only fanciful and peripheral issues which do not suffice for setting aside of an award.
13. On the specific allegations on bias, the obligant is faulted for engaging in delaying tactics and that throughout the trial it never challenged the impartiality of the arbitrator. In addition, the applicant contends that the test for impartiality adopted by the statute is stringent and goes beyond a party merely alleging loss of confidence on the arbitrator; one must demonstrate actual bias or prejudice. In this matter, the applicant asserts, the allegations of bias are not in congruence with the record of goings on in the proceedings which show that the arbitrator outrightly indulged the obligant by allowing late discovery and recalling witness who had testified earlier for cross-examination. On the discernment in the award, the applicant avers that the reasoning and conclusion in the award are in-depth and beyond reproach.
14. To the applicant it is not open for the court to revisit findings of fact as established by the arbitrator. The obligant was reminded to blame self for failure to lead relevant evidence. The application to set aside was termed misconceived, unmerited and a good candidate for dismissal while that for recognition and enforcement was deemed wholly merited and deserving to be allowed as prayed with costs to the applicant.
Set up, Issues, analysis and Determination
15. The court has had the chance to read the two applications on record, the affidavits filed in support and opposition to both and the rival submissions by both sides as well as the authorities cited in support of each side. Having done that, and with appreciation that there are two applications which seek converse orders of the other, it shall start with the application for setting aside determine the same and only proceed to the application for enforcement in the event that the setting aside is declined.
16. In every application for setting aside an arbitral award, the court proceeds from the very foundation and attribute of arbitration law that it is grounded upon the principle of party autonomy on choice of the forum, limits the intervention by court to the only statutory grounds of intervention and that there remains the need to achieve finality of the award.
17. In this matter the obligant urges the court to set aside the award on the allegations of bias in the manner the arbitral proceedings were conducted and concluded. It is alleged that the arbitrator displayed an open bias in the manner and way he addressed the applicant and capped that bias with failure to adequately consider the evidence led that would show that the claim was not proved. Specific reference is made to two instances the record reveals the arbitrator to have been swayed and manipulated by emotions expressed by the applicant which the obligant. The recorded instances are when the arbitrator assured the applicant that no intimidating questions would be allowed, that the process would remain civil adding that he arbitrator and the counsel would be there for her. The second instance is when the counsel for the obligant was asked to avoid asking questions that led the applicant into shedding tears. On when emotions may amount to bias to vitiate proceedings, the obligant cites Sobeth Development Ltd vs south Nyanza Sugar Company Ltd (2010) eKLR
18. On the appraisal of the evidence led, the obligant considers that as demonstration of not only bias but also undue influence and cites the decisions in Simon Taveta vs Mercy Mutitu Njeru (2014) eKLR, Ezekiel Osugo Angwenyi Vs National Industrial Credit Bank Ltd (2017) eKLR and Godison Sixty-One School Ltd Vs Symbion Kenya Ltd (2018) eKLR.
19. On its part, the applicant maintains that the thresholds for setting aside an award have not been made and urges the court to be slow in intervening outside the parameters set by the statute. In particular, the applicant points out that while the application is apparently brought on grounds of fraud and bribery, the material availed abandons that line and concentrates on bias. The applicant argues that the window for setting a side an award is circumscribed by the statute at section 35 and leaves no room for adventure beyond the statute. The decision in Midco Holdings Ltd Vs Summit Textiles (EA) Ltd for the proposition of the law that an applicant has no liberty but to confine self to the legal parameters set by the statute.
20. On bias, the applicant sees the fault as a challenge on the suitability of the arbitrator envisaged under sections 13 and 14 of the Act which should have been taken up before the arbitrator but was never so taken up. The same is thus viewed belated, flippant and unmerited to justify the prayer for setting aside. The decision in West Park Ltd Vs Villa care Ltd was cited for the proposition that for a claim of bias to succeed, it must be grounded on existing and justifiable circumstances, not upon some fanciful or imagined doubt limited to the applicant. That the test is stringent and measures to the standards of recusal of a judge so that abuse is kept at bay.
21. On undue influence by emotional conduct by the applicant, the position taken is that the applicant had indeed been harassed by harsh cross-examination leading to the proceedings being halted.
22. On the last issue of failure to adequately consider and apply the evidence led, the applicant takes the view and contends that the arbitrator is the master of the facts and it is not open to the court, being not appellate, to upset the award on grounds that the arbitrator misapprehended the contract, the law or on the findings of fact. For that proposition, the applicant cites the decisions in National Agricultural Export Development Board vs Gargill Kenya Ltd (2014) eKLR, Mahican Investments Ltd Vs Giovanni Gaida (2005) eKLR, Rai Vs Rai (2007) eKLR and Nairobi Golf Hotels Ltd Vs Floor Company Ltd (2015) eKLR.
23. The submissions conclude by citing the Court of Appeal in Nyuttu Agrovet Vs Airtel Networks Ltd (2015) eKLR on the rationale behind the limited intervention by court on arbitral proceedings being the principle of party autonomy.
24. The sole issue in the application for setting aside is whether the obligant has brought himself within the bounds of section 35(2) vi of the Act. From the beginning the court agrees with the applicant that, there has not been placed any material before the court to suggest, let alone prove, fraud, bribery or corruption. The court thus proceeds from the stand point that the award is challenged on the basis that the arbitrator displayed bias against the obligant by unduly protecting the applicant having been manipulated by the immotive expressions of the applicant which then led him to cursorily consider the evidence in favour of the obligant. In other words, the court poses the question, has there been demonstrated undue influence upon the arbitrator by matter extraneous to the dispute he was bound to resolve.
25. A reading of the record before the arbitrator shows that in at least two instances the arbitrator expressed sympathy to the applicant in a manner pointing that her breaking down during cross examination deserved protection from the tribunal. The issue the court has to grapple with is whether such is sufficient proof of bias that deems undue influence upon the tribunal.
26. For this court, the nature of influence that would invite intervention by the court must be the kind that is ignoble, improper and thus unjust for the due adjudication of the dispute. The court appreciates that many times, litigants and witnesses express different emotions at trial for different reasons. Some parties would act spontaneously when triggered by happenings at the proceedings or those connected to the proceedings. Others may however act in a predetermined manner in order to whip the human and emotional reactions of the tribunal. Such will always happen and the tribunal or courts have no way of stamping them out. The adjudicator whenever faced with such a scenario must be deliberate in shielding itself from being swayed and compromised from the duty to be impartial.
27. As a system of justice, even when voluntarily chosen by parties, arbitration must serve the course and meet the ends of justice. It cannot, for example, be immune from scrutiny by the court when an outright unfairness, negating the constitutional right to fair hearing, is apparent on its record. In such a case the court must answer to is duty to protect the integrity of the decision-making process through arbitration.
28. Because adjudicative justice remains justice wherever administered, and the primary duty of every court system is to do justice, a demonstration of undue influence that compromises justice should invite intervention of the court as a matter of inherent duty. Thus, in Kenya, while it is agreed that party autonomy and finality of arbitration are foundational cornerstones of the statute, demonstrated unfairness invites intervention by the court even at the point of appeal. 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) (6 December 2019) (Judgment) did set the law on intervention by the court thus:-
“With regard to jurisdictions that grant leave to appeal, Courts have held that leave to appeal may be granted 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.
…We take the further view that from our analysis of the law and, the dictates of the Constitution 2010, Section 35 should be interpreted in a way that promotes its purpose, the objectives of the arbitration law and the purpose of an expeditious yet fair dispute resolution legal system. Thus, our position is that, as is the law, once an arbitral award has been issued, an aggrieved party can only approach the High Court under Section 35 of the Act for Orders of setting aside of the award. And hence the purpose of Section 35 is to ensure that Courts are able to correct specific errors of law, which if left alone would taint the process of arbitration. Further, even in promoting the core tenets of arbitration, which is an expeditious and efficient way of delivering justice, that should not be done at the expense of real and substantive justice.” (Emphasis provided)
29. The court is guided that in handling this request for its intervention, it has the duty to correct errors of law which if left to stand would taint arbitration as a recognised and respected alternative dispute resolution mechanism. The court takes the view and learning that the need to protect party autonomy and finality of the process remain overbearing and compelling only when the award passes the test of being fair and just.
30. Applying the foregoing position of the law to the facts of this case, and while reiterating that no material was produced to prove, fraud bribery and corruption, there is sufficient material demonstrating that the tribunal in expressing its empathy with the applicant, compromised its duty to remain impartial in the manner that it later dealt with the totality of the evidence that showed that there was an element of breach by the applicant of the Revenue Sharing Agreement and that some of the invoices had been rejected.
31. The court finds that the applicant successfully and unduly influenced the arbitrator by the manner she narrated having been abused by Mr Gallot and the aggressive manner cross examination was conducted to the extent that the applicant shed tears. That influence negated the fair and just adjudication of the dispute. It thus renders the award unfair and unjust and invites the courts intervention for purposes of reinstating the purpose of the arbitration law and practice.
32. The upshot of the foregoing conclusion is that the award is set aside. The costs of the application is awarded to the obligant.
33. Because it was the choice of parties that the dispute be determined by arbitration, this matter is remitted for fresh arbitration before a different arbitrator.
34. The application to set aside having succeeded, there is no award to be recognised and enforced and therefore it follows that the application dated 31.01.2024 also fails.
Dated, signed and delivered online, this 28th day of August, 2024