The document summarizes challenges to arbitration awards with a focus on East Africa. It discusses the geographical scope covered, the legislative background in Kenya, Tanzania, Uganda and Rwanda. It also discusses approaches to finality of awards, grounds for setting aside awards such as time limits and jurisdiction. The document examines issues relating to appeals, including express limitations and implied rights of appeal. Key talking points highlighted include the "warts and all" approach to awards in Kenya and Uganda, and the wide and fluctuating definition of public policy.

1. CHALLENGES TO
AWARDS WITH A FOCUS
ON EAST AFRICA
Aisha Abdallah
Partner at Anjarwalla & Khanna, Nairobi

2. 2
Introduction:
- Geographical scope
- Legislative background
- Approaches to finality
Grounds for Setting Aside:
- Time limits, Jurisdiction and Standing
- Terms of reference, Public Policy, Errors
Appeal:
- Express Limitations
- Implied Right of Appeal
Talking points
Overview of Presentation

3. 3
Geographical scope and
limitations
Different definitions
of Eastern Africa
ranging between
10-20 countries
EAC - Burundi,
Kenya, Rwanda,
Tanzania and
Uganda covering
approx 1.8 mio
sq kms &
population 150 mio
Limited information
on Rwanda (no
cases)
No information on
Burundi (no
English translation
of Act or cases)

4. 4
Legislative background
Kenya Tanzania Uganda Rwanda
•The 1995
Arbitration Act, Cap
49 of the Laws of
Kenya
•Act applies to all
international and
domestic arbitration
(S.2)
•Uncitral model law
•The Arbitration Act,
Cap 15 (2002 revised
ed) of the Laws of
Tanzania
•Act applies to all
disputes. However,
land disputes not
arbitrable under
Lands Act, Cap 113.
•Amends 1931 Act
•The Arbitration&
Conciliation Act,
Cap 4 amends older
act, but no express
repeal
•Act applies to
domestic and
international
arbitration and
conciliation (S.1)
•Uncitral model law
•Law No. 005/2008
of 14/02/2008 on
Arbitration and
Conciliation in
Commercial Matters
•Law applies to
domestic and
international
commercial
arbitration and
conciliation (Art.1)
•Subject to any other
law, which excludes
arbitration
•Uncitral model law

5. 5
Approaches to Finality
Kenya Tanzania Uganda Rwanda
• Award is final
and binding and
no recourse
except in
accordance with
the Act -SS 10,
32A and 36
• Finality on
relevant matters
and findings of
fact by arbitrator
in relation to
interim
measures- S.7(2)
• No court shall
intervene except
as provided in
the Act –S. 9
• Award is final
and binding and
no recourse
available
otherwise than
in accordance
with the Act-S.9
• Finality of
matters ruled by
the arbitrator in
relation to
interim
measures -S.6
• Non intervention
of the court save
where provided by
the Act (Art. 7)
• Awards, interim
measure,
preliminary order
final and binding
irrespective of
country of issue
(Art.50, Art. 21)

6. 6
Grounds for Setting Aside
Kenya Tanzania Uganda Rwanda
 Part VI, S.35(2):
a. Incapacity
b. Invalid agreement
c. Improper notice or
unable to present
case
d. Dispute outside terms
of reference
e. Improper composition
of tribunal
f. Making of award
induced by fraud,
bribery, undue
influence or
corruption
g. Non-arbitrable
dispute
h. Public policy
•Section 16:
a. If arbitrator has
misconducted
himself
b. If award is
improperly
procured
 Section 34:
a. Incapacity
b. Invalid agreement
c. Improper notice or
unable to present case
d. Dispute outside terms of
reference
e. Improper composition
of tribunal
f. Award procured by
fraud, bribery, undue
means or evident
partiality or corruption
in arbitrator(s)
g. Award not in
accordance with Act
h. Non-arbitrable dispute
i. Public policy
• Art 47:
a. Incapacity
b. Invalid agreement
c. Improper notice or
unable to present
case
d. Dispute outside terms
of reference
e. Improper composition
of tribunal
f. Non arbitrable
dispute
g. Public security
NB – No ground for fraud
or corruption

7. 7
 Various: Kenya (3 months), Rwanda (30 days) and
Uganda (1 month). Tanzania ?
 Can apply to extend time:
Jamal v Shamji (2007) CA, Dar es Salaam – Application
to extend time for petition to set aside. Judge instead remitted
award to extend time for payment of award. CA said serious
error. Should have dealt with application. No petition to remit.
Remitted to HC to decide on application.
Time Limits

8. 8
 Roko Construction Ltd v Mohammed (2013) CA,
Kampala – Award 30-6-2009. Application by M to set aside Dec
2009 on basis no arbitration agreement. Successful and RC
appealed. CA said challenge to jurisdiction should have been made
under s16 within 30 days of ruling by arbitrator on PO. Not done.
Time limit to set aside also 30 days. Both out of time and no
application to extend. HC lacked jurisdiction to hear application and
order to set aside a nullity. Also no appeal from ruling on set aside.
Award binding. No costs awarded.
 Anne Mumbi Hinga v Victoria Njoki Gathara (2009) CA
Nbi –Award 1999. Leave to enforce under s36 in 2002. Application
to stay execution and set aside in 2008 for improper notice of
award. Dismissed and AMH appealed. CA unanimously dismissed
as application way outside 3m time limit. HC did not have
jurisdiction to hear application. Failure to serve any process after
award not a ground to set aside under s35.
Late applications

9. 9
 Tanzania National Roads Agency v Kundan Singh
Construction (2012) HC, Nairobi- Contract for road works in
Tanzania subject to arbitration. Award in favour of Agency and KS appealed
under arbitration agreement to Stockolm Chamber of Commerce. Award by
2 out of 3 arbitrators. Agency applied to HC Mombasa to recognise and
enforce. KS appealed award in Stockholm and applied to HC in Nbi to set
aside the part of the award allowing counterclaim. Agency objected on
basis Kenya lacked jurisdiction to set aside under s 35. Havelock held
(applying Salumerica decision) that governing law was Tanzanian and law
of arbitration was Sweden (albeit transcript of hearing showed it took place
in France). Sweden had primary jurisdiction and application to set aside
should have been made there. Kenya only had secondary jurisdiction under
s37 to recognise and enforce. Application dismissed. Noted that s 35
covered both domestic and international awards (ie Kenya could set aside
an international award if it was the arbitral seat).
Jurisdiction to set aside

10. 10
 AG v Kilembe Mines Ltd & Uganda Gold Mining Ltd (2011) HC,
Kampala – 1st Respondent was a private limited mining company wholly
owned by Ugandan government. Disputed termination went to
arbitration. 2 Respondents entered award by consent. AG applied under
s34(2)(b) to set aside on grounds of public policy for breach of Public
Enterprises Reform & Divestiture Act and against express instructions of
Director of Privatisation Unit who swore supporting affidavit. 2nd Resp
filed PO: AG not a party to arbitration so could not apply under s 35 and
application filed 2 months after consent (time limit 1m). Judge noted that
under s2 party included someone claiming under a party and there was a
disagreement between AG and management of 1st Resp. Time began to
run after Ministry of Finance (Privatisation Unit) received notice of award,
which was 1 month after consent made. So application was filed in time.
PO dismissed and application could proceed to hearing.
Standing

11. 11
 Kenya Shell Ltd v Kobil Petroleum Ltd (2006) CA, Nbi – In 1990
Shell agreed to blend, supply and deliver lubricants to Kobil for resale. Cl 18
excluded liability for loss of profits except if caused by Shell’s negligence. Shell
terminated 17-11-2000. Kobil obtained interim injunction for continuing supply
pending arbitration and claimed $600m in loss of profits. Arbitration took 2 years
with 10 witnesses and 2000 documents. Award by 3 arbitrators in favour of Kobil
filed 6-2-2004. Shell applied under s35 to set aside award as outside terms of
reference by going outside meaning of cl18. HC dismissed and refused leave to
appeal. Shell applied to CA for leave. PO filed challenging right of appeal. CA
majority held right to appeal. Noted that parties agreed issues in dispute
including effect of s18 on claim. Arbitrators gave findings on the issues so no
question of going outside terms. CA said public policy relevant to discretion.
Public policy in favour of an end to litigation. Leave to appeal declined.
 NB: This decision was later discussed and the CA departed from it in a later case,
but the decision on the terms of reference remains good law.
Terms of Reference

12. 12
Public Policy
Christ For All Nations vs. Apollo Insurance Co. Ltd (2002) HC, Nbi– Repudiation of
insurance policy extended to cover Zambia on basis extension was only third party
cover. Award in favour of insured. Insurer applied to set aside on ground of public
policy as industry would react very negatively and award contrary to justice. No
Kenyan cases under s35 but grounds for refusal same as for setting aside. Public
policy was broad concept incapable of precise definition: Inconsistent with
Constitution or other laws; Against national interest (incl national defence and
security, good diplomatic relations with friendly countries and economic prosperity)
and Contrary to justice/morality (corruption, fraud or contract against public morals).
No evidence re economic interests. Error of fact and/or law not breach of public
policy. Public policy leans towards finality and parties must accept awards “warts and
all”.

13. 13
 Kenya Shell Limited vs. Kobil Petroleum Limited – Public policy is
an indeterminate principle or doctrine that is relevant to the exercise of
the discretion as to the grant of leave to appeal. It is variable and must
fluctuate with the circumstance of time. In this case, public interest is that
there should be an end to litigation.

Public Policy contd…

14. 14
 Pan Africa Impex Uganda Ltd v Roko Construction Co. Ltd (2013) HC,
Kampala- Building contract for office block. Both parties paid deposit. PAI
did not pay its share of balance of $49,868. Award dated 15-2-2010 by
sole arbitrator. RC paid outstanding fees and filed on 18-5-2010. PAI
applied to set aside on 3 grounds: 1. Award not delivered to both parties
in breach of s31(8); 2. Arbitrator relied on evidence of Mr Nyanzi who was
an unqualified surveyor (a criminal offence) 3. Decisions on law and
findings of fact based on illegality so breach of public policy. Held that PAI
should have applied to Court under s6 if fees excessive and did not do so.
Arbitrator had lien on award for unpaid fees and entitled to refuse
delivery of award. Arbitrator had taken into account lack of qualification
and preferred the evidence of Ms Musisi, a qualified surveyor. Nyanzi’s
role was to witness contract and that did not make it invalid. No illegality.
No breach of public policy. Application dismissed.
Errors on face of record

15. 15
Limitations on Appeal
Kenya Tanzania Uganda Rwanda
 HC decisions on
appointment,
challenge,
termination of
mandate,
withdrawal and
jurisdiction of
arbitral tribunal
final
 Domestic awards
only: Appeal to the
HC by prior
agreement on
points of law
S.39(1)
 Appeal from HC to
CA by agreement
of parties prior to
delivery of award
•No provisions on
appeal
 Appointing
authorities decison
on appointment,
termination of
mandate of
arbitrator final.
 HC decision on
jurisdiction final
 Application to
determine or
appeal to the HC
by agreement of
the parties on
points of law
S.38(1)
 Appeal lies from
HC to CA on point
of law by
agreement of the
• Appeal or cessation
of a case that is yet
to be decided lies to
the court on
grounds similar to
those for setting
aside award in
Rwanda (Art.47)

16. 16
 Roko Construction Co. Ltd v Mohammed (Ug)– Although s 34 did not expressly bar
appeal, when read in light with s 9 clear that no right of appeal under Act unless
expressly conferred. No right to appeal against decision by High Court on an
application to set aside under s34.
 Nyutu Agrovet Ltd vs. Airtel Networks Ltd (2015) CA, Nairobi – Distribution
agreement for phones terminated by Airtel. Cl 18.1 said award shall be final and
binding on parties. Sole arbitrator awarded N $5.7m as general damages for
negligence. Airtel applied to set aside as outside remit and against public policy.
Set aside as outside remit and N granted leave to appeal. Airtel filed PO that no
right to appeal per s10. N argued, inter alia, s10 unconstitutional as right to be
heard fundamental. 5 Judge bench due to importance and previous conflicting
decisions as to right to appeal. Unanimous decision striking out appeal. Art 159(2)
Constitution encourages ADR incl arbitration. Parties freely chose arbitration with
all attendant consequences. The Arbitration Act based on UNCITRAL where
concept of finality key. Only exception was under s39 where parties to domestic
award had agreed appeal on point of law. Not applicable.
Implied Right of Appeal?

17. 17
 “Warts and all” approach applies in Kenya and Uganda, so no
implied right of appeal.
 Finality can mean no award at all!
 Public policy is a ground and also relevant to discretionary powers.
It is very wide and fluctuates with time.
 Hard to assess extent of common EAC approach in absence of
reported cases for Rwanda and Burundi
Talking points

18. BOTSWANA
BURUNDI
ETHIOPIA
KENYA
MALAWI
MAURITIUS
NIGERIA
RWANDA
SUDAN
TANZANIA
UGANDA
ZAMBIA
Legal Notice: these materials are for training purposes only and do not constitute legal or other professional advice.
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PO Box 83156 – 80100, Mombasa, Kenya
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