Cape Holdings Limited v Synergy Industrial Credit Limited
The bottom line
#Supreme Court cannot hear appeals from arbitration disputes under Section 35 of the Arbitration Act.
What this practically means
#The Supreme Court of Kenya has ruled that it has no power to hear appeals from the Court of Appeal in cases arising under Section 35 of the Arbitration Act. This means that once the Court of Appeal decides an arbitration-related appeal, that decision is final. The Court also said you cannot ask for a review and an appeal at the same time, and you cannot re-open a matter that has already been decided.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this court has jurisdiction to entertain an appeal challenging a decision of the Court of Appeal where the appellate court assumed jurisdiction to determine an appeal emanating from section 35 of the Arbitration Act.
- 2.Whether the application is res judicata in light of the Supreme Court's earlier determination in SC Application No. E007 of 2021.
- 3.Whether the applicant had elected both review and appeal, thereby defeating the principle of finality of litigation.
Key legal issues
#Whether the Supreme Court has jurisdiction to hear an appeal from the Court of Appeal in a matter arising from section 35 of the Arbitration Act.
The Supreme Court lacks jurisdiction to entertain such an appeal.
The court relied on its earlier decision in Geo Chem Middle East v Kenya Bureau of Standards, which declared that where the Court of Appeal assumes jurisdiction under the Nyutu and Synergy principles and delivers a consequential judgment, no further appeal should ordinarily lie to the Supreme Court. This is in conformity with the principle of expedition in arbitration matters.
Whether the application for review of certification is res judicata.
The application is res judicata.
The applicant had previously filed Supreme Court Application No. E007 of 2021 seeking review of certification to appeal against the same Court of Appeal judgment of November 6, 2020. This court pronounced itself with finality on October 8, 2021, dismissing that application. The present application seeks to relitigate the same matter and is therefore barred by res judicata.
Whether a party can simultaneously pursue both review and appeal of the same decision.
A party cannot seek both review and appeal; they must elect one avenue.
The court cited its decision in University of Eldoret & another v Sitienei & 3 others, holding that seeking both review and appeal defeats the essence of the principle of finality of litigation. The applicant had sought review of the Court of Appeal judgment of November 6, 2020, and also attempted to appeal against it, which is impermissible.
Legal principles established
#- The Supreme Court lacks jurisdiction to hear appeals from Court of Appeal decisions under Section 35 of the Arbitration Act.
- A party cannot simultaneously pursue both a review and an appeal of the same court decision.
- An application is barred by res judicata if the same issue was already finally decided by the Supreme Court.
- The principle of finality in litigation requires parties to choose one legal remedy, not both.
- Where the Court of Appeal properly assumes jurisdiction in arbitration matters, no further appeal lies to the Supreme Court.
Court orders
#- 1.The motion dated December 1, 2025 and filed on December 3, 2025 is hereby dismissed.
- 2.The Ruling of the Court of Appeal delivered on November 21, 2025, denying certification and leave to appeal to this court, is hereby upheld.
- 3.The applicant shall bear the costs of the application.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Court of Appeal of Kenya
- Civil Appeal (Application) No. Sup. E004 of 2024
- Jurisdiction invoked
- Article 163(4)(b) & (5) of the Constitution
Relief refused
#Review of the Court of Appeal ruling of November 21, 2025 declining certification
This court lacks jurisdiction to entertain an appeal challenging a decision of the Court of Appeal where the appellate court assumed jurisdiction to determine an appeal emanating from section 35 of the Arbitration Act.
Certification that the intended appeal raises matters of general public importance
The application is res judicata and the court lacks jurisdiction.
Costs
The applicant shall bear the costs of the application.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
this court lacks jurisdiction to entertain an appeal challenging a decision of the Court of Appeal, where the appellate court assumed jurisdiction to determine an appeal emanating from section 35 of the Arbitration Act
a party must only elect one avenue, either to seek a review or lodge an appeal, they cannot seek both as this defeats the essence of the principle of finality of litigation
this application is res judicata and cannot be relitigated
The motion dated December 1, 2025 and filed on December 3, 2025 is hereby dismissed.
The Ruling of the Court of Appeal delivered on November 21, 2025, denying certification and leave to appeal to this court, is hereby upheld.
The applicant shall bear the costs of the application.
Key timeline
#Practical implications
#No further appeal in arbitration cases
When handling arbitration disputes under Section 35 of the Arbitration Act, advise clients that the Court of Appeal's decision is final. Do not file a notice of appeal to the Supreme Court, as it will be struck out for lack of jurisdiction. Instead, focus on ensuring all arguments are fully presented at the Court of Appeal stage.
Arbitration awards are now more final
Businesses involved in arbitration can expect quicker resolution. Once the Court of Appeal rules on an arbitration matter, the Supreme Court will not hear a further appeal. This reduces the risk of prolonged litigation. Ensure your arbitration agreements and strategies account for this limited appeal route.
Limited options after arbitration appeal
If you are a party to an arbitration dispute, know that the Court of Appeal is the last stop. You cannot take the case to the Supreme Court. Also, you cannot ask the same court to review its decision while also appealing it. Choose one remedy and act quickly, as the decision becomes final.
Frequently asked questions
#Can I appeal an arbitration decision to the Supreme Court of Kenya?+
No, the Supreme Court has ruled it lacks jurisdiction to hear appeals from the Court of Appeal in cases under Section 35 of the Arbitration Act. The Court of Appeal's decision is final.
What does res judicata mean in Kenya court cases?+
Res judicata means a matter that has already been decided by a court cannot be re-litigated. In this case, the Supreme Court had already ruled on the same issue, so the new application was dismissed.
Can I file both a review and an appeal for the same court decision in Kenya?+
No. The Supreme Court held that you must choose either a review or an appeal, not both. Doing both defeats the principle of finality of litigation.
What is the effect of the Vinaychandra Sanghrajka v 14 Riverside Limited case on arbitration in Kenya?+
It confirms that arbitration disputes under Section 35 of the Arbitration Act end at the Court of Appeal. The Supreme Court will not hear further appeals, making arbitration awards more final and reducing litigation time.
Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ahmed v Ali & 2 others (Environment and Land Miscellaneous Case E058 of 2026) [2026] KEELC 4616 (KLR)[2026] KEELC 4616 (KLR)20 Jul 2026applied
- Jitihada Furniture Limited &2 others v Asad Anwar [2022] KEELC 1138 (KLR)[2022] KEELC 1138 (KLR)23 Feb 2022applied
- Virunga Limited & another v Navin Premji Kerai (Sued in his own name & in his capacity as a Co-administrator of the Estate of Sapna Kanji Patel) & another [2021] KEELC 4315 (KLR)[2021] KEELC 4315 (KLR)15 Feb 2021
Cite this brief
#Cite this brief
Caselaw, "Cape Holdings Limited v Synergy Industrial Credit Limited", Case Analysis (2026). Application E036 of 2025. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2026/26/eng@2026-03-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.