April 30 2009
Once an arbitral award has been made, the applicant's next step is to have the respondent pay the awarded sum. If the respondent fails to do so, the applicant must make an application to the High Court requesting it to recognize and enforce the award. The respondent may also make an application seeking to set aside the arbitral award based on the grounds specified under Section 35 of the Arbitration Act. Where the High Court refuses such an application, the respondent may appeal against its decision with the leave of the High Court or Court of Appeal and the consent of the involved parties.
In Githunguri Dairy Company Limited v Ernie Campell & Company Limited the High Court held that the language of the Arbitration Act requires mandatory consent of the parties involved before an appeal can be lodged.
The applicant made an application to the High Court seeking a stay of execution of the arbitral award, pending its appeal against the High Court decision refusing to set the award aside. The respondent objected to the application. It argued that the requirements established under Section 39(3) of the Arbitration Act had not been complied with since the parties involved had not consented to the appeal and leave to appeal had not been granted.
The court held that pursuant to the Arbitration Act, the consent of the parties involved and leave to appeal must be obtained before an appeal can be lodged. The act is clear that both of these conditions must be satisfied before an appeal is lodged. In this case, the parties involved had not consented to the appeal and thus the application for a stay of execution of the award was dismissed.
The language of the Arbitration Act requiring all parties to the dispute to consent before an appeal can be lodged against a High Court decision discourages parties from attempting to frustrate the arbitral process.
For further information on this topic please contact Caroline Thuo at Njoroge Regeru & Company by telephone (+254 20 271 8482) or by fax (+254 20 271 8485) or by email (firstname.lastname@example.org).
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