Scott v Avery clauses
When arbitral awards may be appealed


Arbitration is the reference of a dispute or difference between no fewer than two parties for determination by a person or persons other than a court of competent jurisdiction which has heard both sides in a judicial manner.(1) Arbitration arises because the parties themselves have agreed to submit their dispute to arbitration rather than resolving it by way of litigation in the ordinary courts. It is not foisted upon the parties.

Many commercial entities prefer arbitration to litigation for various reasons, including its ability to determine disputes speedily, affordably and conclusively. By agreeing to arbitration, the parties to a dispute implicitly agree to accept the result. Such parties generally give up their rights of appeal in exchange for a speedy and inexpensive conclusion.

However, in Kenya, an increasing number of parties to disputes have perfected the art of agreeing to arbitration in the first instance, only to resort to courts if the arbitral award is not in their favour. Such parties challenge the arbitral award all the way to the Court of Appeal, wasting a lot of time and resources and thereby defeating the purpose of having gone to arbitration in the first place.

Scott v Avery clauses

Often, what are referred to as Scott v Avery clauses – clauses within contracts or contracts themselves that refer a dispute to arbitration – state that the arbitration will be final and conclusive.(2) Such clauses typically conclude with the words: "the decision of the Arbitrator shall be final and conclusive."

In this regard, in Road Accident Fund v Cloete the Supreme Court of Appeal in South Africa observed that "ordinarily the award of an arbitrator is final and conclusive, irrespective of how erroneous, factually or legally, the decision was."(3)

When arbitral awards may be appealed

In Kenya, the Arbitration Act 1995 (as amended by the Arbitration (Amendment) Act 11/2009) sets out the specific instances in which an aggrieved party may have recourse to the courts following an arbitral award. The central point is that the act aims to limit the intervention of the courts as much as possible.

In this regard, the act strictly limits the scope of recourse to the High Court for the setting aside of an arbitral award by limiting the grounds for such recourse to those specified under the act. Such grounds include:

  • where a party making an application to the High Court to set aside the arbitral award provides proof that a party to the arbitration agreement was subject to some incapacity; or
  • where the High Court finds that the award is in conflict with Kenyan public policy.

An application to set aside an arbitral award must be made in the High Court within three months of the date on which the party making the application receives the award.

With regard to appeals to the Court of Appeal, the act is even more stringent. It provides that:

  • an appeal to the Court of Appeal must be restricted to matters of law; and
  • the parties to the arbitration must have agreed before the delivery of the award that there may be such recourse to the Court of Appeal.

The Court of Appeal recently echoed these sentiments in Anne Mumbi Hinga v Victoria Njoki Gathara.(4) In this case, the court opined that: "there is no right for any court to intervene in the arbitral process or in the award except in situations specifically set out in the Arbitration Act or as previously agreed in advance by the parties."


In Kenya, the acronym 'ADR' is often humorously expanded to the phrase "another disastrous result" because arbitral awards are appealed so frequently. However, in its purest form arbitration is final and conclusive and any recourse to the courts is tempered by the law and the parties themselves.

Parties to commercial disputes refer to arbitration in anticipation of a speedy, inexpensive and lasting resolution. The Court of Appeal decision in Mumbi Hinga serves to admonish parties which submit to arbitration in the first instance, only to contest the arbitral award in courts all the way to the Court of the Appeal. It is hoped that the Court of Appeal has now brought this practice to an end.

For further information on this topic please contact Paul Njoroge Kimani at Njoroge Regeru & Company by telephone (+254 20 271 8482), fax (+254 20 271 8485) or email ([email protected]).


(1) Halsbury's Laws of England, 4th Edition, Paragraph 501.

(2) Scott v Avery, 5 House of Lords, 811, 854.

(3) 2010(6), SA 120 (SCA).

(4) Nairobi, CACA 8 of 2009.