Interpreting the silence of section 35 of the arbitration act 1995: a judicial dilemma for the Kenyan courts
Date
2020-11
Authors
KASSAM, IRFAN JAFARALI
Journal Title
Journal ISSN
Volume Title
Publisher
Strathmore University
Abstract
Pursuant to the provision under section 35 of the Arbitration Act, 1995, in Kenya, an arbitral award may be set aside following an application to the High Court. However, a problem arises when an aggrieved party remains unsatisfied even after resorting to the High Court. As such, can the High Court’s decision be subjected to an appeal to the Court of Appeal under this section? It emerges that there is a meaningful silence in section 35 that holds the solution to the appeal concerns. However, the Court of Appeal has illustrated a divergence in the interpretation of this silence. Owing to the split in the Court of Appeals’ decisions, this study is intended to determine the meaning of silence in section 35 with specific reference to judicial authorities.
Further, the study evaluates the legal framework of arbitration in Kenya while focusing on the appellate jurisdiction of the Court of Appeal under section 35.
Description
At the heart of judicial interpretation, lies the difficult task of identifying legislative intent. 1 Words, as expressive as they may be, are many times unclear. Each of them represents a living thought inscribed by the drafters of the law. 2 Likewise, the unexpressed intention of the legislature, otherwise known as silence, also has something to say. 3 However, due to its elusive nature, discovering the meaning of silence is arguably exacting. 4 Akin to this, is the silence of section 35 of the Arbitration Act 1995 of Kenya but before delving into the substance of the section, this introduction proceeds with a brief background on the legal framework of arbitration.