Arbitration Act 1995: Is A Reform Overdue?

Abstract 
The Arbitration Act 1995 has been in operation for the last 26 years. Many key changes have taken place in the arbitral arena including technological changes and globalisation of the arbitral practice. It is probably the right time to systemically review and/or overhaul some aspects of the Act based on these changes to ensure that it remains effective, agile and responsive to the ever-changing landscape. Rather than present an exhaustive list of proposed areas of review, this article focuses on three potential areas for review where recent case law has highlighted gaps in the Act and areas where clarification and reform would be welcome.?        

1.0 Introduction

Several countries have moved to revise or overhaul their arbitration legislation owing to the development of trade, commercial transactions and the increased use of arbitration. However, Kenya is yet to modernise its Arbitration Act 1995 save for the amendments that were done in 2009. After being in force for more than two decades, it is probably the right time now to systematically revisit some aspects of the Act to ensure that it remains fit for purpose in the years to come. There is debate around whether the scope of the Act’s provisions meets the increasingly complex needs of arbitration today. It is possible that some would assume the Act is behind the times.

To bring to the fore some of the many changes that have taken place in the arbitration arena. First, technological change is taking place at an ever-increasing pace and transforming the way in which business and arbitrations are being done. In order to navigate Covid-19 pandemic difficulties, arbitral parties and tribunals were forced to rapidly adopt electronic service of documents, electronic arbitration awards, and a “change of hearing venues” from a physical room to a virtual room which stood to be most disruptive. Second, globalisation is a reality – the change in the legal profession is an excellent example of this. Digital technology has facilitated the growth of offshoring and near-shoring work. It has facilitated the growth of law firms and arbitral tribunals across many different jurisdictions across the world. Where once a law firm may have an office in one or two significant commercial centres outside their home jurisdiction and called themselves a global law firm, we now have truly global law firms with offices in cities throughout the world. Underpinning this is obvious: as business, commerce, financial and other markets have become increasingly global, lawyers, dispute resolvers – and the law – must follow suit.?

On 30 November 2021, the UK Law Commission announced that it would review the UK Arbitration Act 1996 with a view to ensuring it is as clear, modern and efficient as possible and, if necessary, suggest possible amendments. The aim is to maintain the attractiveness of England and Wales as a “destination” for dispute resolution and the pre-eminence of English Law as a choice of law. The proposed specific matters to be addressed would be determined in the coming months, through consultation with stakeholders. However, as part of its consultations, it received a number of submissions on areas of the Act that could be included. These possible areas include issues relating to; the power to summarily dismiss unmeritorious claims or defences in arbitral proceedings; the courts’ powers exercisable in support of arbitration proceedings; the procedure for challenging a jurisdiction award; the availability of appeals on points of?law; the law concerning confidentiality and privacy in arbitration proceedings; Electronic service of documents, electronic arbitration awards and virtual hearings.

Although it may prove to be that case that not all of the identified issues are ultimately considered by the Law Commission, or that the Law Commission determines that no amendments to the Act’s existing provisions are required in relation to certain of these issues. However, the Law Commission’s decision to revisit the Act confirms that the United Kingdom wishes to remain a pro-arbitration jurisdiction at the forefront of international dispute resolution for the near future.

It is against this backdrop that this article will attempt to review the Kenyan Arbitration Act 1995, with a view of proposing certain areas in which reform of the Act could be looked into to ensure that it remains effective, agile and responsive to the changing landscape of arbitration practice worldwide. Rather than present an exhaustive list, this article will focus on three potential areas for review where recent case law has highlighted gaps in the Act and areas where clarification and reform would be welcome. These include; first, express provisions on the use and role of technology in arbitrations. Second, reviewing whether a reversal of the presumption of confidentiality in arbitral proceedings would be a good idea. Third, a look into the right of appeal under Section 35 of the Act in light of the recent Supreme Court decisions.

The paper is divided into four parts. Part II will give the background of the Arbitration Act 1995. Part III will explore the use of technology in arbitrations and propose possible amendments to the Act. It will discuss the issue of transparency and confidentiality in arbitrations and why there is a need for a rethink of the presumption of confidentiality. It will also delve into the recent Supreme Court decisions as regards the right to appeal under Section 35 and why there is a need to amend the section. Part IV concludes by stating that after 26 years of the Act being in operation it is time to overhaul it through wide stakeholder consultation and public participation process.

2.0 Background of The Arbitration Act 1995

Article 159 of the Constitution of Kenya 2010 recognises Alternative Dispute Resolution (ADR) as an avenue to access justice. It provides that in the exercise of judicial authority, courts and tribunals should be guided by alternative forms of dispute resolution including reconciliation, mediation-arbitration and traditional dispute resolution mechanisms. It bestows responsibility on the state to ensure access to justice for all persons at a reasonable fee that shall not impede them. It is clear from the above-stated provisions that the Constitution promotes access to justice through ADR.

The earliest arbitration law in Kenya was the Arbitration Ordinance 1914, which was a reproduction of the English Arbitration Act of 1889. The Ordinance provided for the resolution of commercial disputes as an alternative to litigation. Although, it was criticised because it did not effectively promote arbitration as it gave the national courts wide powers to interfere and control the arbitration procedures.

With the development of trade and the increased use of arbitration in dispute settlement, there was a need for reform. The first legislation that regulated arbitration in Kenya after independence in 1963 was the Arbitration Act of 1968. The Act was modelled around the English Arbitration Act of 1950. The intention was to ensure that arbitration proceedings were more insulated from courts interventions as was the case under the 1914 Ordinance.

However, one of the main criticisms of the 1968 Act, was that it did not limit the extent to which courts could interfere with the arbitral processes. This affected the efficiency and effectiveness of arbitrations because of delays, and additional procedures and costs in arbitrations as references to courts were frequent and often defeated the purpose of arbitration as an ADR mechanism. As Justice Karanja observed:

The Act (Arbitration Act 1968) provided too much intrusive powers to the courts to interfere with arbitral proceedings and the awards. This was contrary to the intention of the traders who intended that arbitration should be unfettered from the courts’ intricate legal procedures which hampered efficiency in dispute resolution and resultantly slowed down growth in trade.’?

Therefore, there was another to reform the law to keep up with international standards with the intention of reducing the court’s influence in arbitration. To achieve this in February 1989, Kenya ratified the 1958 New York Convention and adopted the UNICITRAL Model Law on arbitration. This led to the repealing of the Arbitration Act 1968 replacing it with the current legislation governing arbitration in Kenya, the Arbitration Act 1995 which is based on the UNICITRAL Model Law. The Act was assented to on 10th August 1995 and commenced operation on 2nd January 1996. The Arbitration Act 1995 was amended via the Arbitration (Amendment) Act 2009, which was assented to on 1st January 2010 (hereinafter referred to as the Amending Act). The 1995 Act is made of 42 sections and is divided into 8 parts.

The essence of the Act is to govern all international or domestic arbitration in Kenya. It provides the default position in very many respects of the arbitral processes. For instance, if parties in an arbitration agreement have not provided the number of arbitrators, the Act provides that the presumption is that the parties intended for one arbitrator. In doing so the Act gives liberty to the parties to decide for themselves in?the arbitration agreement their desired arbitration process. In respect to the courts’ intervention in arbitral proceedings, section 10 of the Act (modelled from Article 5 of the UNICITRAL Model law) limits courts' power to intervene in matters governed by the Act except as provided in the Act.

It is against this background and the Act has been in operation for 26 years now, it is probably the right time to systematically relook at some aspects of the Act to ensure that it remains fit for purpose in the years to come. Premised on the many changes that have taken place in the arbitral field and the gaps in the Act that may have been identified through court decisions.?

The next part of the article will focus on the three highlighted potential areas for review or reform.

3.0 Potential Areas for Review/Reform

The three potential areas are; the use of technology in arbitrations, the transparency and confidentiality in arbitrations and the right of appeal under Section 35 of the Arbitration Act

A. The Use of Technology in Arbitration

Already years ago, the arbitration community globally was on a quest to make fuller use of available technologies in proceedings. The motivation for technological innovation in arbitration was largely for the economy in time and cost. In other words, greater and better use of technology was already identified as distinctly in arbitration’s best interest and, according to some, inevitable. Covid-19 pandemic hastened the use of technology in arbitral processes. For example, initially, the use of video conferencing technology had provoked an interesting split in opinions of arbitrators and counsel alike. On one side stood traditionalists who believed that it is fundamentally unsound to question a witness from a remote location; on the other side stood enthusiasts who believed that video technology would help eliminate much of?the time and expense that bedevils arbitration hearings and of course, several practitioners stood somewhere in between those two poles.

However, adaptation to Governments public health directives as a result of the Covid19 pandemic situation forced the traditionalists to rapidly adopt electronic service of documents, electronic arbitration awards, and a “change of hearing venues” from a physical room to a virtual room. Advanced facilities available today have reduced conventional impediments and legal uncertainties surrounding the use of information technology, such as cost of procuring equipment, other technological issues involving data protection, the confidentiality of documents and evidence adduced during the proceedings and privacy of the parties.

Looking beyond the Covid-19 pandemic, a variety of possible reasons are conceivable for virtual hearings, ranging from certain participants not being able to attend physically due to professional inconveniences such as an important business meeting or more critical causes like a medical condition to other more altruistic reasons such as decreasing carbon footprint.

The advantage of the move to virtual hearings includes ease of access for parties and representatives by removing the need to travel to an arbitral venue. An arbitrator can ‘virtually hear’ a matter when sitting in their chambers, house or even kitchen. Thereby drastically decreasing the cost of doing an arbitration. Further, these additional savings tend to revolve around the cost of travel, lodging expenses and venue reservation without sacrificing the important dynamic of face to face interaction.

Virtual platforms can be accessed anytime, anywhere, and are not reliant upon the parties and the arbitrator convening on a shared schedule, so disputes can be moved through the system more quickly.

The fundamental requirements of arbitration of giving each party a reasonable opportunity of putting his case and dealing with that of his opponent while avoiding unnecessary delay or expense are practically harmonized with the ease and comfort of the parties, witnesses and arbitrator. While slight limitations remain depending on the quality of the equipment and platform employed by the tribunal, the general facial and physical expressions communicated by witnesses are rarely inhibited by the use of such technology.

The Arbitration Act 1995 requires the parties to an arbitration to do all things necessary for the proper and expeditious conduct of the arbitral proceedings. The parties are free to agree on the procedure to be followed by the arbitral tribunal in the conduct of the proceedings. An interpretation of this Act and sections reveal that technology and virtual methods and procedures can be incorporated in the proceedings as they can assist in expediting the arbitral process. From the foregoing, the Act tries to distinguish between oral hearings and written proceedings. Considering, that the meaning of “oral hearing” cannot be equated strictly with an in-person hearing, it follows that the right to be heard does not guarantee a right to an oral, in-person hearing in all circumstances. The exchange of evidence or arguments can be done orally in both in-person hearings and virtually with the difference that the communication is transmitted either with or without technological tools.

The Act does not expressly provide while at the same time does not categorically rule out the use of new technology in arbitral proceedings. This is because both the decision to arbitrate and the manner in which the arbitration is conducted are contractually based, which confers on the parties and the arbitrator significant operational freedom. However, it is now clear that the potential requirement for statutory assistance on the use of technology in arbitration should be actively considered. Some jurisdictions have expressly embraced and encouraged the use of technology in arbitration proceedings to not only increase efficiency but also save on time and costs.

It is desirable that the Arbitration Act 1995 should emphasize the use and role of technology like what the United Arab Emirates has done in its Arbitration Law, 2018. The law has several references to the use of modern means of communication. For example, Article 7(2) of the Act provides that, an arbitration agreement shall be deemed to be in writing if it is contained in a document signed by the parties or in an exchange of correspondence or other written means of communication or in the form of an electronic message in accordance with the applicable rules of the State concerning electronic transactions. Written correspondence can be deemed to have been delivered if sent, amongst other means, by email. Article 28(2) provides that arbitral hearings and deliberations can be conducted by modern means of communication and electronic technology. In addition, Article 33(3) provides that a hearing may be held through modern means of communication without the physical presence of the parties at the hearing. Pursuant to Article 35, the arbitral tribunal may question witnesses, including expert witnesses, through modern means of?communication without their physical presence at the hearing. The emphasis on the use of technology will undoubtedly modernise arbitral proceedings in the UAE.

Similarly, Article 1072b(4) of the Dutch Civil Procedure Code provides that “[i]nstead of a personal appearance of a witness, an expert or a party, the arbitral tribunal may determine that the relevant person have direct contact with the arbitral tribunal and, insofar as applicable, with others, by electronic means,” adding that “[t]he arbitral tribunal shall determine, in consultation with those concerned, which electronic means shall be used to this end and in which manner this shall occur.”

Further, consideration should be made for a review of the Act to make an express provision as to the ability of an arbitral tribunal to order virtual hearings where one party objects bearing in mind the provisions of Section 20 of the Act. There is a risk that this could potentially give rise to debates as to the enforceability of an award where that party feels they have been denied a fair hearing as a result. The Austrian Supreme Court has already dealt with a case where the issue of whether conducting an arbitration hearing by videoconference over the objection of one party violated due process.

Should an amended Act expressly lay down the rules in such cases to avoid such challenges in the years to come?

B. Transparency and Confidentiality in Arbitrations

The terms “privacy” and “confidentiality” are at times used interchangeably, they are in fact different. The former means that the hearings are held in camera, whilst confidentiality refers to the obligation of the participants involved in the proceedings not to reveal information regarding the arbitration to strangers.

Confidentiality is one of the perceived advantages of arbitration over court litigation. The advantages of confidentiality in arbitration proceedings are well understood. The preservation of sensitive proprietary and commercial information, coupled with the ability to preserve an existing commercial relationship, are some of the two main factors favouring the maintenance of confidentiality in arbitration proceedings. It is well established that unauthorised release of information or documents or publication of awards by one party, is prohibited and such a breach of confidentiality is subject to the same sanctions that apply to contractual breaches of confidence. On the other hand, it is widely recognised that the publication of awards, when done in an anonymous manner, without revealing the names of the parties and sensitive information, does not breach the confidentiality principle. This is notably the case with publications made by arbitral institutions. The arbitral community, however, is still very much divided on this and the debate over whether publication of awards is advantageous or detrimental to the system continues.

The principle of party autonomy as expressed in sections 20 and 25 of the Arbitration Act gives parties to an arbitration the right to agree on all procedural and evidential matters. Parties often choose to arbitrate in order to keep details of their dispute private. Under the Act, the parties have an implied duty to maintain the confidentiality of the proceedings. This extends to the hearing, the documents and submissions generated (and disclosed) in the dispute, and the award ultimately rendered by the arbitral tribunal. Although there are exceptions to this obligation for example, where disclosure is in the interest of justice. However, there is no statutory definition of confidentiality in the Act.

Similarly, the UK Arbitration Act of 1996 also does not define confidentiality. The 1989 Report by the UK Departmental Advisory Committee on Arbitration Law (the DAC Report) made it clear that this was a deliberate decision. The drafters of the Act considered giving confidentiality a firm statutory basis in the Act, but the exercise proved too difficult and controversial. One issue was whether it was possible to give an accurate exposition of the principle of confidentiality in the abstract. Another concern was that the myriad of exceptions and qualifications to the principle of confidentiality made it difficult to formulate acceptable statutory guidelines.

The DAC Report noted that the position is not wholly satisfactory, but concluded that, because the principles are unsettled, they were better left to the common law to evolve on a pragmatic case-by-case basis. However, that conclusion was subject to the following caveat:

“In due course, if the whole matter were ever to become judicially resolved, it would remain possible to add a statutory provision by way of amendment to the Bill.”?

Almost 25 years have passed since the UK Act was enacted and, in that time, the common law has evolved. The UK Court of Appeal decisions in Ali Shipping Corporation v Shipyard Trogir and Emmott v Michael Wilson & Partners Ltd are now the leading cases on the nature of the obligation of confidentiality. A further raft?of case law has formulated recognised exceptions to the duty of confidentiality. Gaps remain, but a reform of the Arbitration Act would allow the drafters to re-consider whether it is now possible to formulate some clear, statutory guidelines on confidentiality.

Furthermore, the strength of this perceived benefit of confidentiality is not, however, as clear cut as it might seem. Arbitral confidentiality is, as the Lord Mayor observed is, “overrated”. Why? Because the market tends to know which parties are involved in which arbitrations and what the arbitration is about. He recalled in one of the market conferences on the UK Arbitration Bill in July 1995, a very well-known member of the insurance community pointed out how easy it was to acquire any award in the insurance market. This shocked the purists, but reflected reality. And then even when confidentiality and privacy are maintained during the arbitration, it does not stay so for long, as information leaks and private markets in the trade of arbitral decisions develop. If the arbitral award requires recognition and enforcement, the inevitable entry into the public arena occurs. Further, parties can bring arbitration proceedings into the public eye by challenging an award before the courts. There is no express rule applying confidentiality to arbitration proceedings before the courts (which includes documents on the court file). It is at the court’s discretion whether or not details of an underlying arbitration will be made publicly available.

For many years, confidentiality in arbitrations in Kenya had been taken for granted and no one questioned its ambit and effectiveness. It was until recently that the extent of confidentiality in arbitral proceedings became a debated topic arising out of arbitrations involving public institutions and due to claims of bribery or corruption in the proceedings. Disputes involving public bodies often involve matters of public interest. Taxpayers have a legitimate interest in knowing how their monies are being spent and disputes therein are being resolved.

Arbitrations have been left to rely almost entirely on case law rendered by the courts. With the increase in arbitration, where decisions more often than not remain confidential, the development of that case law has, arguably, been constrained. This is particularly true of sectors where arbitration is the most popular, if not default, a mechanism for dispute resolution, such as in construction. On a practical level, the absence of publicly available arbitral decisions has also meant that the appointment of arbitrators rests heavily on the recommendations and advice of lawyers. The absence of transparency means that parties simply do not know how arbitrators perform the role of fact-finders or the role of contract interpreters. Given that a key draw of arbitration is meant to be the ability to appoint one’s own arbitrator, greater transparency in these areas would be welcome. If arbitration practice is to continue to develop, it is important that it remains cognizant of public demand, as well as the legal and commercial environment in which it operates.

More recently, calls for increased transparency in the field have added a new dimension to the debate by arguing that the publication of awards is one of the most significant ways to achieve this. Even though some of the leading arbitrators have recognised the practical importance of publishing awards and have supported the idea that systematic publication can increase confidence and transparency in the system as a whole, arbitral awards are still unpublished.

As a result, much of the information concerning arbitration and the arbitrators’ decision-making approach is obtained through anecdotal sources Globally there is no uniform practise of publishing awards and the existing compilations published by internationally renowned arbitral institutions have been criticised for being biased and not representative of the whole. It has been argued that sometimes the redaction of the awards is so extensive that it is unclear how the arbitrators reached their decisions, thus the publication becomes somewhat futile. Moreover, there is a danger of the development of a parallel market for the “unlawful” publication of awards, either through information leaks or the emergence of “private libraries” of arbitral awards in law firms benefitting members of an exclusive “club”.

The debatable proposed solution would be to reform the Arbitration Act by introducing an “opt-in” system, so that arbitral proceedings are only treated as confidential where the parties expressly provide for confidentiality in their arbitration agreements, in the absence of which the proceedings are not be treated as confidential. It has also been argued that reversing the presumption of confidentiality would help make the arbitral process and its outcomes more predictable. It has been said that one way of achieving this is to encourage a richer body of precedent, helping the development of the law in fields that traditionally rely heavily on arbitration, such as construction. Other jurisdictions such as Norway’s Arbitration Act has adopted the “opt-in” system. Australia’s Arbitration Act and Hong Kong Arbitration have adopted an “opt-out” system in which there is an automatic presumption of confidentiality over arbitral proceedings unless the parties “opt-out” of this framework. Similarly, the obligation to treat all matters relating to arbitration as confidential is enshrined in the Arbitration (Scotland) 2010 Act. Singapore and New Zealand also have codified provisions.

Given the apparent importance of confidentiality to users of arbitration, it is necessary to test carefully the underlying rationale for the proposed reforms; namely, to provide greater transparency and predictability to the arbitral process. It is also necessary to assess whether an “opt-in” system would have the desired effect.

In those circumstances, there is a risk that depriving awards of confidentiality could have the paradoxical effect of developing two parallel sources of decisions: awards given by arbitrators (without precedential value) and court judgments (that do have?precedential value), potentially leading to uncertainty as to which will be preferred by arbitrators in cases before them. There are no doubt parties and their counsel would feel the need to rely on both in their submissions, which would inevitably increase the time and costs of proceedings.

Therefore, the scope of the duty of confidentiality and legal basis are important issues of policy. A balance needs to be struck between the increasing trend towards transparency in arbitration and the fact that confidentiality is regularly cited by parties as one of the key advantages of arbitration as compared with litigation. Jurisdictions like New Zealand, Scotland and Singapore have sought that balance through legislation, perhaps now is the time for Kenya to follow suit.

C. Right of Appeal under Section 35 of the Act

One of the contentious issues in arbitral practice in Kenya has been whether a right of appeal accrues automatically from the decision of the High Court under Section 35 of the Arbitration Act. The section provides for recourse to the High Court against an arbitral award through an application for setting aside an award. The High Court upon such an application may set aside the award if the party making the application proves that: a party to the arbitration agreement was under some incapacity; the arbitration agreement is not valid under the law to which the parties have subjected it or the laws of Kenya; the party making the application was not given proper notice of the appointment of an arbitrator or the arbitral proceedings; the arbitral award deals with a dispute not contemplated by or not falling within the terms of reference to arbitration; the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties; or the making of the award was induced or affected by fraud, bribery, undue influence or corruption. The High Court may also set aside the award if it finds that the subject matter of the dispute is not capable of settlement by arbitration under the law of Kenya or the award is in conflict with the public policy of Kenya.

The issue of the right of appeal under section 35 of the Arbitration was given prominence by the Supreme Court in the case Nyutu Agrovet Limited -vs- Airtel Networks Kenya Limited. The Supreme Court in the case decided that an appeal may lie to the Court of Appeal against a decision of the High Court made pursuant to section 35 of the Arbitration Act upon grant of leave in exceptional cases. Specifically, the majority of the Supreme Court judges held that the Arbitration Act and the UNCITRAL Model Law do not expressly bar further appeals to the Court of Appeal. From their 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. Therefore, their position was that, as is the law, once an arbitral award has been issued, an aggrieved party can only approach the High Court under section 35 for Orders to set aside of the award. 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. Therefore, whereas they acknowledged the need to shield arbitral proceedings from unnecessary Court intervention, they also acknowledged the fact that there may be legitimate reasons seeking to appeal High Court decisions.

Moreover, considering that there is no express bar to appeals under section 35, they were of the opinion that an unfair determination by the High Court should not be immune from the appellate review. As such, in exceptional circumstances, the Court of Appeal ought to have residual jurisdiction to enquire into such unfairness. However, this jurisdiction should be exercised carefully so as not to open a floodgate of appeals thus undermining the very essence of arbitration.

In concluding this issue, they agreed with the Interested Party, the Chartered Institute of Arbitrators, to the extent that the only instance that an appeal may lie from the High Court to the Court of Appeal on a determination made under section 35 is where the High Court, in setting aside an arbitral award, steps outside the grounds set out in the said section. Thereby making a decision so grave, so manifestly wrong and which completely closes the door of justice to either of the parties. This circumscribed and narrow jurisdiction should be so sparingly exercised that only in the clearest of cases should the Court of Appeal assume jurisdiction.

The Supreme Court went on to restate the principle that not every decision of the High Court under Section 35 is appealable to the Court of Appeal. It also follows that an intended appeal, which is not anchored upon the four corners of section 35 of the Arbitration Act, should not be admitted. In that regard, an intended appellant must demonstrate (or must be contending) that in arriving at its decision, the High Court went beyond the grounds set out in section 35 of the Act for interfering with an Arbitral Award.

Prior to the Supreme Court decisions in Nyutu Agrovet Limited -vs- Airtel Networks Kenya Limited and Synergy Industrial Credit Limited v Cape Holdings Limited, the question of whether the right of appeal accrues under section 35 of the Arbitration Act had remained unsettled. Where the Court of Appeal decided that it has no jurisdiction, it has observed that the Court of Appeal’s intervention is only envisaged under section 39 of the Arbitration Act. Further, the court had also made the finding that the right of appeal is conferred by a specific statute and does not generally flow from Article 164 (3) of the Constitution. In other instances, the Court of Appeal had decided that it had jurisdiction to entertain appeals under section 35 of the Act, it took the view that since the section is silent on the issue of appeal, it should be interpreted to confer jurisdiction to the Court of Appeal. Further, in support of this view, the Court of Appeal had also decided that if the legislature had the intention of limiting the right of appeal under section 35, it would have expressly done so similar to other specific provisions of the Arbitration Act.

On a comparative basis, section 67(4) of the English Arbitration Act provides clarity on the issue of appeals, unlike section 35 of the Kenyan Arbitration Act which does not expressly bar or allow an appeal from a High Court decision made pursuant to the section. The English Act provides that leave of the court is required for any appeal from a decision of the court on an application challenging an arbitral award. 105 Amidst the conflicting decisions that have emanated from the Court of Appeal in regard to the right of appeal under section 35 of the Arbitration Act, the Supreme Court has rendered some certainty on the issue in a number of cases it has decided to deal with the right of appeal under section 35 of the Arbitration Act.

The Supreme Court has rendered some certainty on the issue of the right of appeal under section 35 of the Arbitration Act. However, the issue of grant of leave under section 35 of the Arbitration Act and the grounds that will warrant the same have been fully settling yet going by the above discussion. This calls a need for legislative intervention that will see the amendment of section 35 of the Arbitration Act in order to capture the Supreme Court’s decision on the issue and provide certainty on instances that may warrant grant of leave to appeal. Further, section 35 of the Act ought to be interpreted in a way that promotes the purpose and objectives of arbitration and limit court intervention while at the same time ensuring expeditious yet just resolution of disputes. Thus, there is a need for a leave mechanism to ensure that frivolous appeals are sieved out and leave to appeal is only granted in matters raising substantive issues under section 35 of the Arbitration Act. Through this, the sanctity of the arbitral process will be protected by ensuring that there is reduced court intervention yet at the same time safeguarding the right of access to justice.

Conclusion

As this article has highlighted, 26 years have passed since the Arbitration Act came into operation. A lot has changed since then including changes in technology and globalisation of the arbitral practice. Additionally, some gaps in the Act have been identified through court processes challenging arbitrations and awards which require legislative intervention. It would be appropriate to review and/or reform some aspects of the Act to ensure that it remains fit for purpose in the years to come. A focused?thought to the issue and a participatory and all-inclusive process would be necessary for the review/reform process.

Review of Alternative Dispute Resolution (ADR) Journal, Vol. 10, Issue No. 1