Kampala International University v Housing Finance Company Ltd
The bottom line
#Supreme Court cannot hear appeals from interlocutory rulings unless a constitutional issue was fully decided below.
What this practically means
#The Supreme Court dismissed Kampala International University's appeal against Housing Finance. The University lost an arbitration over a loan, then tried to challenge the award in the High Court and Court of Appeal. Both courts refused to hear the case. The University appealed to the Supreme Court, arguing its fair hearing rights were violated. The Supreme Court said it has no jurisdiction to hear appeals from temporary rulings unless a constitutional issue was fully decided by the lower courts. Since the Court of Appeal only decided whether to grant leave to appeal, not a constitutional question, the Supreme Court could not hear the case. The appeal was dismissed with costs.
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 hear and determine the appeal
- 2.Whether the appellant has met the threshold for grant of leave to appeal to the Court of Appeal
Key legal issues
#Whether the Supreme Court has jurisdiction under Article 163(4)(a) to hear an appeal against a Court of Appeal decision declining to grant leave to appeal against a High Court judgment affirming an arbitral award under section 35 of the Arbitration Act.
The Supreme Court lacks jurisdiction because the Court of Appeal's decision was interlocutory and did not involve a substantive determination of a constitutional issue that had been canvassed from the High Court.
The Supreme Court examined its settled jurisprudence that it does not entertain appeals from interlocutory decisions of the Court of Appeal unless the decision amounts to a substantive determination of a constitutional issue canvassed through the superior courts below. The court found that the only issue before the Court of Appeal was whether the appellant met the threshold for leave to appeal under the Nyutu Agrovet and Synergy cases. No constitutional issue was substantively determined by the Court of Appeal. The appellant's claim of violation of fair hearing rights was merely a claim, not a constitutional issue that had been canvassed and determined. The court also rejected the appellant's argument that the issue of jurisdiction was res judicata based on an earlier ruling granting conservatory orders, as that ruling did not foreclose future interrogation of jurisdiction.
Whether the appellant met the threshold for grant of leave to appeal to the Court of Appeal against the High Court decision under section 35 of the Arbitration Act.
The appellant did not meet the threshold because the intended appeal did not fall within the limited circumstances where an appeal lies from a section 35 decision, and the Court of Appeal correctly applied the principles from Nyutu Agrovet and Synergy.
The Supreme Court agreed with the Court of Appeal that the appellant sought to challenge the arbitrator's jurisdiction and bias, which were matters that ought to have been raised before the arbitrator during the arbitral proceedings under sections 13, 14, and 17 of the Arbitration Act. The Court of Appeal correctly held that the appellant failed to demonstrate that the High Court stepped outside the grounds set out in section 35 of the Arbitration Act. The Supreme Court found that the Court of Appeal was correctly guided by the Nyutu Agrovet and Synergy decisions in declining to grant leave.
Legal principles established
#- Supreme Court only hears appeals from Court of Appeal decisions that finally determine a constitutional issue raised from the High Court.
- A party cannot create Supreme Court jurisdiction by merely claiming constitutional rights were violated by a lower court.
- Appeals against High Court decisions under section 35 of the Arbitration Act require leave from the Court of Appeal and are limited to cases where the High Court exceeded its powers.
- Issues of arbitrator bias or jurisdiction must be raised during arbitration, not after the award is made.
- A prior ruling granting temporary orders does not prevent the Supreme Court from later examining its own jurisdiction.
Court orders
#- 1.The amended petition of appeal dated August 18, 2023 is hereby dismissed
- 2.The costs of this appeal shall be borne by the appellant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Court of Appeal at Nairobi
- Civil Application No E343 of 2021
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
Relief refused
#Setting aside the ruling of the Court of Appeal in Civil Appeal No 343 of 2021
The Supreme Court lacked jurisdiction to entertain the appeal against the Court of Appeal's interlocutory decision declining leave to appeal
Order directing the Court of Appeal to admit and hear the appeal against the ruling of Muigai, J
The Supreme Court lacked jurisdiction
Setting aside the final arbitral award dated September 17, 2019
The Supreme Court lacked jurisdiction
Costs
The costs of this appeal shall be borne by the appellant
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.
The amended petition of appeal dated August 18, 2023 is hereby dismissed;
The costs of this appeal shall be borne by the appellant.
We see no constitutional issue that had been canvassed at the High Court, the determination of which, was substantively decided by the Court of Appeal.
This court has consistently held that the mere claim by a party to the effect that its rights were violated by a superior court for whatever reason, does not bring the intended appeal within the purview of article 163(4)(a) of the Constitution.
there is no basis upon which this court can assume jurisdiction to overturn or otherwise deal with the Court of Appeal's decision declining to grant leave to appeal to the appellant herein.
the only instance that an appeal may lie from the High Court to the Court of Appeal on a determination made under section 35 is where the High Court, in setting aside an arbitral award, has stepped outside the grounds set out in the said section and thereby made a decision so grave, so manifestly wrong and which has completely closed the door of justice to either of the parties.
Key timeline
#Practical implications
#Limit appeals from arbitration rulings
When advising clients on challenging arbitral awards under section 35 of the Arbitration Act, emphasize that appeals to the Court of Appeal require leave and are only available if the High Court stepped outside the statutory grounds. Do not rely on constitutional claims to bypass this restriction; the Supreme Court will not hear such appeals unless a constitutional issue was substantively decided by the Court of Appeal.
Arbitration awards are final
If your business agrees to arbitration, expect the award to be binding. Challenging an award in court is extremely difficult. The High Court can only set aside an award on very limited grounds (e.g., arbitrator bias, procedural unfairness). Even then, appealing that decision requires special permission from the Court of Appeal. Plan your dispute resolution strategy accordingly.
Raise bias claims early
If you believe an arbitrator is biased or lacks jurisdiction, you must raise that objection during the arbitration process, not after the award is issued. Waiting until the award is made and then trying to challenge it in court will likely fail. The courts will not consider issues you could have raised earlier. Act promptly to protect your rights.
Frequently asked questions
#Can I appeal an arbitration award to the Supreme Court in Kenya?+
Generally, no. The Supreme Court only hears appeals from the Court of Appeal on constitutional issues that were fully decided by the lower courts. A challenge to an arbitration award under section 35 of the Arbitration Act is very limited, and the Supreme Court will not hear it unless a constitutional issue was substantively determined by the Court of Appeal.
What is the threshold for appealing a High Court decision on an arbitration award in Kenya?+
You need leave (permission) from the Court of Appeal. The Court of Appeal will only grant leave if the High Court stepped outside the grounds set out in section 35 of the Arbitration Act, for example by making a decision that is manifestly wrong or closes the door of justice. This is a very high bar.
Does claiming a constitutional violation allow me to appeal to the Supreme Court in Kenya?+
No. The Supreme Court has ruled that merely claiming your constitutional rights were violated by a lower court does not give it jurisdiction. The constitutional issue must have been raised and substantively decided by the High Court and then the Court of Appeal before the Supreme Court can hear the appeal.
What happens if I don't raise arbitrator bias during arbitration in Kenya?+
You will likely lose the right to challenge the award on that ground later. The courts expect you to raise issues of bias or lack of jurisdiction during the arbitration process under sections 13, 14, and 17 of the Arbitration Act. Waiting until after the award is made to raise these issues will probably be unsuccessful.
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.
- Cove Investment Limited v Rono & another (Suing as the Legal Representatives of the Estate of Mathias Kimnyole Langat) & 2 others[2026] KESC 24 (KLR)20 Feb 2026followed
- Isaac’s Investment Co Ltd v Archipoint Consulting Architects (Civil Application E797 of 2024) [2025] KECA 1117 (KLR)[2025] KECA 1117 (KLR)20 Jun 2025followed
- Vio Tech Ltd v Upperhill Chambers Ltd & another (Civil Application E026 of 2024) [2025] KECA 698 (KLR)[2025] KECA 698 (KLR)11 Apr 2025applied
Cite this brief
#Cite this brief
Caselaw, "Kampala International University v Housing Finance Company Ltd", Case Analysis (2024). Petition 34 (E035) of 2022. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2024/11/eng@2024-04-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.