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Court of AppealStruck OutCivil Appeal No. 38 of 2013· [2014] KECA 251 (KLR)

Tanzania National Roads Agency v Kundan Singh Construction Limited [2014] KECA 251 (KLR)

Court of Appeal of Kenya
14 November 2014
4,052 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This is a judgment of the whole Court of Appeal at Mombasa (Okwengu, Makhandia and Sichale, JJ.A.) delivered on 14th November 2014 in an appeal by Tanzania National Roads Agency against a High Court ruling (Muya, J.) that refused to recognize and enforce an international arbitral award from the Stockholm Chamber of Commerce, on the ground that enforcement would be contrary to Kenyan public policy because the arbitrators applied English law contrary to the parties' choice of Tanzanian law. The respondent filed preliminary objections contending that the appeal was incompetent and that the Court lacked jurisdiction. The Court framed two issues: its own jurisdiction, and, if it existed, whether enforcement would offend public policy. It held that Article 164(3)(a) of the Constitution confers jurisdiction to hear appeals from the High Court but does not confer an automatic right of appeal; a right of appeal must be vested by statute. The Arbitration Act provides a right of appeal only for domestic awards, and the UNCITRAL Model Law, reflecting its deliberate policy of minimal court intervention, provides only a one-step intervention in the High Court as the competent court, with no further appeal. The Court rejected the appellant's arguments that the invocation of Article 2(5) and (6) of the Constitution raised a constitutional issue, and that a matter of general public importance could found an appeal to the Court of Appeal, noting that route exists only under Article 163(4)(b) for appeals to the Supreme Court. Upholding the preliminary objection, the Court struck out the appeal for want of jurisdiction and awarded costs to the respondent, without addressing the substantive public policy questions.

Key legal issues

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01

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

Holding

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.

Reasoning

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).

p. 6
02

Whether the appeal raised matters of general public importance sufficient to found jurisdiction

Holding

No; the appeal concerned recognition and enforcement of an agreement between two individuals, not a matter transcending the particular case.

Reasoning

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.

p. 7
03

Whether the High Court erred in finding enforcement of the award contrary to public policy of Kenya

Holding

Not determined; the court declined to address the substantive public policy issues after upholding the jurisdictional objection.

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 1.The preliminary objection raised by the respondent is upheld
  2. 2.The appeal is struck out for want of jurisdiction
  3. 3.Costs awarded to the respondent

Authorities

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Legislation

  • Arbitration Act (Chapter 49, Laws of Kenya)section 36
  • Arbitration Act (Chapter 49, Laws of Kenya)section 37, including 37(1)(a), 37(1)(b) and 37(2)
  • Arbitration Act (Chapter 49, Laws of Kenya)section 3(3)
  • Arbitration Act (Chapter 49, Laws of Kenya)section 39
  • Arbitration Act (Chapter 49, Laws of Kenya)section 29(1)
  • Arbitration Act (Chapter 49, Laws of Kenya)section 35(2)(b)(2)
  • Constitution of Kenya, 2010Article 2(5) & (6)
  • Constitution of Kenya, 2010Article 163(3)(a)
  • Constitution of Kenya, 2010Article 163(4)(b)
  • Constitution of Kenya, 2010Article 164(3)(a)
  • Constitution of Kenya, 2010Article 259(1)
  • UNCITRAL Model Law on International Commercial ArbitrationArticle 2
  • UNCITRAL Model Law on International Commercial ArbitrationArticle 5
  • UNCITRAL Model Law on International Commercial ArbitrationArticle 36(1)(b)
  • New York Convention on Recognition and Enforcement of Foreign Arbitral AwardArticle 5(2)(b)
  • New York Convention on Recognition and Enforcement of Foreign Arbitral AwardArticle V(ii)(b)
  • Civil Procedure Actsection 75(1)(h)
  • Civil Procedure Rules, 2010Order 43 Rule 1(1)
  • Appellate Jurisdiction Act
  • Criminal Procedure Code
  • Legal Notice No. 11 of 2009

Cases cited (7)

  • Anne Mumbi Hinga v Victoria Njoki Gathara
    [2009] eKLR
  • Attorney General of Kenya v Anyang’Nyong’o & 10 Others
    [2010] eKLR
  • Kenya Shell Limited v Kobil Petroleum Limited
    [2006] eKLR
  • Ramji Devji Vekaria v Joseph Oyula
    [2011] eKLR
  • Hermanus Ruscone
    [2012] eKLR
  • Christ for All Nations v Apollo Insurance Company Limited
    [2002] 2 EA 351
  • The Lilian’s case
    [1989] KLR 1
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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.