Arbitration
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Case Brief: Albatross Aviation Limited & another v Phoenix of East Africa Assurance Company Limited [2018] eKLR

Introduction

Alternative Dispute Resolution (ADR) is considered as one of the vital and timely methods for addressing any dispute between parties. To make such provisions quite effective, parties provide various terms in the contract on what method to utilise when a dispute arises.

ADR Clauses can indicate that the Arbitrator’s decision will be final or followed by means like MEDARB or ARBMED; or there will be room for an appeal to the Court in the event a party or parties is/are not satisfied with the decision of the preferred ADR.

Currently, there is an ongoing debate on whether ADR can be sustained when the matter at hand violates the Public Policy of a given country. However, regardless of ADR Clause providing that a certain ADR method is final, there is chance of appeal when the formation of the ADR Panel or the manner in which decision was reached is marred with various factors including corruption.

In this case, we are relying on it to address on when does the 30-day period start to run to allow a party to appeal an Arbitration Decision at the High Court of Kenya. In answering the question, it will highlight when the jurisdiction of the Arbitrator comes to an end.

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In Albatross Aviation Limited & another v Phoenix of East Africa Assurance Company Limited (supra) the Court, among other issues, was faced with the question on when a party should file an appeal against an Arbitral award.

The Arbitration Act provides that the timelines concerning appeal will be addressed by the rules of the Court of Appeal or High Court. In this case, since the High Court is the forum for appeal, the Civil Procedure Act was relied on by the Court to address the posed question.

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The Sole Arbitrator upon rendering his decision by dismissing the Appellants claim on July 27, 2017, the Appellants were dissatisfied and decided to seek Additional Award – review – from the Arbitral Tribunal as per s 34 (4) of the Arbitration Act on September 18, 2017. The Sole Arbitrator rendered its further decision by dismissing the Appellants claim on December 20, 2017.

The Appellants still being dissatisfied, decided to file an appeal on January 15, 2018, before the High Court pursuant to s 39 of the Arbitration Act.

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The Court decided that by seeking review, ideally Additional Award, it means the matter was still under the Jurisdiction of the Arbitrator. As a result, until when the Arbitrator renders its decision concerning the Additional Award, the matter could not be appealed to the High Court, within 30 days as per s 79G of the Civil Procedure Act.

The Court noted that the time limit to file an appeal should start running when a party receives the Arbitration Award, or if reviewed, the Additional Award.

Practice Notes

Since an appeal majorly focuses on the pleadings before the superior/tribunal/subordinate forum, it is imperative that a party exercises review where necessary for purposes of widening its scope of argument at the appellate Court, should an appeal be an option to go for.

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