A Critique of the Principle of Finality in Arbitral Proceedings Under Section 39 (3) (B) of the Arbitration

Abstract

Finality of arbitral proceedings is one of the major achievements introduced by the Arbitration (Amendment) Act, 2009; which buttressed the concept of party autonomy under the Arbitration Act, 1995. The Courts have been seen as an important player in domestic arbitration in Kenya. However, parties to arbitral proceedings have always used the instances permitted by the Arbitration Act, 1995 for the Court to intervene in arbitral proceedings to frustrate or undermine arbitral proceedings. This study seeks to critique the principle of finality in arbitral proceedings under section 39 (3) (b) of the Arbitration Act, 1995 to the extent that the section allows appeals to the Court of Appeal on points of law, which is an exception to section 10 and 35 of the Arbitration Act, 1995. To holistically establish the question under study, this study will seek to look at; the effect of allowing appeals on points of law in section 39 (3) (b) of the Arbitration Act, 1995 to the Court of Appeal on finality of arbitral proceedings and propose recommendations. The aim of the study is to contribute to the continued promotion of using Arbitration as a mode of Alternative Dispute Resolution (ADR) in Kenya by ensuring that the Court appellate process is not used by parties to frustrate or undermine arbitral proceedings; by proposing specific amendments to that effect and to bring the Arbitration Act, 1995 in conformity with the Constitution of Kenya, 2010.