Okeno & Sons Building Contractors v Bukura Agricultural College [2018] KECA 103 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed you cannot appeal a High Court decision setting aside an arbitration award, unless the law specifically allows it.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether an appeal lies to the Court of Appeal from a decision of the High Court setting aside an arbitral award under Section 35 of the Arbitration Act
- 2.Whether the leave to appeal granted by the High Court conferred jurisdiction on the Court of Appeal
Key legal issues
#Whether the Court of Appeal has jurisdiction over an appeal from a Section 35 setting-aside decision
No appeal lies; the Court has no jurisdiction to entertain the appeal.
The Arbitration Act provides two avenues of recourse to the High Court: setting aside under Section 35 and appeal on questions of law under Section 39. Section 39(3) permits an appeal to the Court of Appeal only from a High Court decision under Section 39(2), and only with agreement of the parties or leave of the Court of Appeal on a point of law of general importance. Since the High Court here exercised Section 35 jurisdiction, Section 39(3) cannot be invoked, and no leave of the Court of Appeal was granted.
Effect of the High Court's grant of leave to appeal
The leave granted by the High Court was granted without jurisdiction and was in vain.
Under Section 39(3), leave to appeal to the Court of Appeal may only be granted by the Court of Appeal itself where a point of law of general importance is involved. A High Court judge has no power to grant leave to appeal from its own Section 35 decision. Such leave is therefore a nullity and cannot found the jurisdiction of the Court of Appeal.
Status of the earlier strike-out application (Rule 42) ruling
The earlier ruling dismissing the respondent's strike-out application was decided on competence/timing, not the merits, so the jurisdictional issue remained open.
The respondent's earlier application to strike out the record of appeal was dismissed because it was filed outside the 30-day period in the proviso to Rule 84 of the Court of Appeal Rules. The Court found the application was not decided on the merits and the question of jurisdiction had not been exhausted, allowing the respondent to raise jurisdiction afresh at the hearing of the appeal.
Legal principles established
#- The Act does not confer a right of appeal to the Court of Appeal from a decision of the High Court in exercise of its setting-aside jurisdiction under Section 35 of the Arbitration Act; jurisdiction under Section 39(3) arises only from decisions under Section 39(2) and requires leave or agreement
- Leave to appeal granted by the High Court in such circumstances is a nullity, as only the Court of Appeal can grant leave under Section 39(3)
Court orders
#- 1.The appeal is struck out
- 2.Costs of the appeal awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kakamega
- H.C. Civil Suit No. 83 of 2010 (O.S)
- Jurisdiction invoked
- Sections 10, 32A, 35 and 39 of the Arbitration Act - the Court determined it had no jurisdiction under Section 39(3) because the High Court decision arose under Section 35
Relief refused
#The appellant's prayer that the High Court decision setting aside the Shs. 4,000,000 general damages award be set aside and the respondent's application dismissed with costs
The Court lacked jurisdiction because the High Court was exercising Section 35 setting-aside jurisdiction, not appellate jurisdiction under Section 39(2)
Costs
Costs of the appeal to the respondent
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.
In setting aside part of the arbitral award, the High Court was not exercising appellate jurisdiction under Section 39(2) of the Act. It follows that the jurisdiction of this Court under Section 39(3) cannot be invoked.
it is clear that the Act does not confer a right of appeal from the decision of the High Court in exercise of its jurisdiction under Section 35 of the Act.
Accordingly, this Court has no jurisdiction to entertain the appeal. Consequently, the appeal is struck out with costs to the respondent. We so order.
Issues in the judgment
#The judgment inconsistently dates the High Court ruling, variously as 3rd October 2013 in the title and 3rd October 2014 in the body
The judgment states the respondent became a State Corporation in July 2007 but the narration first says 'before July, 2017'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Okeno & Sons Building Contractors v Bukura Agricultural College [2018] KECA 103 (KLR)", Case Analysis (2018). Civil Appeal No. 3 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/103/eng@2018-12-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.