Tanzania National Roads Agency v Kundan Singh Construction Limited [2014] KECA 251 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that High Court decisions on enforcing international arbitral awards cannot be appealed — the arbitration process ends there.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the Court of Appeal over appeals from High Court decisions on recognition and enforcement of international arbitral awards under section 37 of the Arbitration Act
The Court has no jurisdiction; the Arbitration Act provides a right of appeal in respect of domestic arbitral awards only, and the UNCITRAL Model Law, which governs international commercial arbitration, provides only a one-step court intervention in the High Court as the competent court.
Article 164(3)(a) confers jurisdiction on the Court of Appeal but does not create an automatic right of appeal; the right must be vested by statute. The Arbitration Act confers no right of appeal for international awards, and the Model Law, which limits court intervention to protect the arbitral process, similarly provides none. The appellant's attempt to ground an appeal on Article 2(5) and (6) of the Constitution or on general public importance failed, the latter being available only in Supreme Court appeals under Article 163(4)(b).
Whether the appeal raised matters of general public importance sufficient to found jurisdiction
No; the appeal concerned recognition and enforcement of an agreement between two individuals, not a matter transcending the particular case.
The court distinguished a matter of general public importance, which transcends the circumstances of the particular case and bears on the public interest, from public policy, an indeterminate principle that fluctuates with the times. A right of appeal anchored on general public importance exists only under Article 163(4)(b) for appeals from the Court of Appeal to the Supreme Court, not to the Court of Appeal itself.
Whether the High Court erred in finding enforcement of the award contrary to public policy of Kenya
Not determined; the court declined to address the substantive public policy issues after upholding the jurisdictional objection.
Having held that the appellant had no right of appeal against the High Court ruling, the court invoked the principle that a court without jurisdiction must down tools and therefore did not address the substantive issues raised in the appeal, including the definition and application of public policy under section 37(1)(b) of the Arbitration Act.
Legal principles established
#- Article 164(3)(a) of the Constitution confers jurisdiction on the Court of Appeal to hear appeals from the High Court, but it does not confer an automatic right of appeal on litigants; a right of appeal must be conferred by statute.
- There is a distinction between the jurisdiction to hear an appeal, which is vested in the court, and the right of appeal, which is vested in the litigant and must be conferred by law.
- The Arbitration Act and the UNCITRAL Model Law provide only a one-step intervention in a competent court (the High Court) for recognition and enforcement of international arbitral awards; no further right of appeal to the Court of Appeal exists.
- The invocation of a constitutional provision does not necessarily give rise to a constitutional issue attracting an appeal as of right, where neither the application nor the interpretation of the provision is in dispute.
- There is no right of appeal to the Court of Appeal anchored on matters of general public importance; that ground arises only under Article 163(4)(b) of the Constitution in appeals to the Supreme Court.
- A court without jurisdiction must down tools and cannot make any further step in the proceedings.
Court orders
#- 1.The preliminary objection raised by the respondent is upheld
- 2.The appeal is struck out for want of jurisdiction
- 3.Costs awarded to the respondent
- On appeal from
- High Court of Kenya at Mombasa
- H.C. Misc. Civil Appl. No. 171 of 2012
- Jurisdiction invoked
- Article 164(3)(a) of the Constitution read with the Appellate Jurisdiction Act; the court held no right of appeal existed under the Arbitration Act or the UNCITRAL Model Law
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tanzania National Roads Agency v Kundan Singh Construction Limited [2014] KECA 251 (KLR)", Case Analysis (2014). Civil Appeal No. 38 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/251/eng@2014-11-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.