Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Application 52 of 2014· [2022] KECA 773 (KLR)

Tanzania National Roads Agency v Kundan Singh Construction Limited

Court of Appeal
10 June 2022
SKS. Gatembu KairuAMA. Mbogholi MsaghaPNP. Nyamweya
2,222 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal refused to let a road agency take an arbitration dispute to the Supreme Court, confirming that arbitration awards are very hard to appeal.

What this practically means

#

Executive summary

#
This is a ruling of the Court of Appeal at Mombasa (S. Gatembu Kairu, A. Mbogholi Msagha & P. Nyamweya, JJ.A) on an application by Tanzania National Roads Agency for certification that a proposed appeal to the Supreme Court raises matters of general public importance under Article 163(4)(b) of the Constitution. The intended appeal sought to challenge the Court of Appeal's judgment of 14th November 2014 (Okwengu, Makhandia & Sichale, JJ.A), which upheld a preliminary objection and struck out the applicant's appeal for want of jurisdiction. The underlying dispute concerned recognition and enforcement of an international arbitral award under Sections 36 and 37 of the Arbitration Act, which the High Court (Muya, J.) had refused to enforce on public policy grounds. The applicant argued that public policy in international commercial arbitration is a matter of general public importance warranting Supreme Court intervention, relying on Muiri Coffee Estate and Hermanus Phillipus Steyn. The respondent opposed, contending no notice of appeal had been filed and that the Supreme Court had already clarified appeals under the Arbitration Act in Nyutu Agrovet and Synergy Industrial Credit. The Court held that, despite embellishment, the real issue was whether there is a right of appeal from High Court decisions under Sections 36 and 37 of the Arbitration Act, and that the Supreme Court's guidance in Nyutu Agrovet and Synergy Industrial Credit left no uncertainty in the law. Applying the Hermanus Phillipus Steyn certification principles, the Court found the matter did not meet the criteria for certification and dismissed the application with costs to the respondent.

Key legal issues

#
01

Whether the proposed appeal raises a matter of general public importance under Article 163(4)(b)

Holding

It does not. Despite embellishment, the real issue is whether there is a right of appeal from High Court decisions under Sections 36 and 37 of the Arbitration Act, which does not transcend the particular case.

Reasoning

The court traced the impugned judgment to a preliminary objection on the competence of an appeal under the Arbitration Act. Applying the Hermanus Phillipus Steyn principles, it held the applicant had to demonstrate uncertainty in the law. The Supreme Court had already clarified appeals under the Arbitration Act in Nyutu Agrovet and Synergy Industrial Credit, so no uncertainty existed and certification was unwarranted.

p. 4
02

Whether there is uncertainty in the law on appeals under the Arbitration Act

Holding

There is none; the Supreme Court has provided guidance in Nyutu Agrovet and Synergy Industrial Credit, and general public importance is not a basis for granting leave in arbitration matters.

Reasoning

The court agreed with the respondent that the Supreme Court had resolved the question of appeals to the Court of Appeal under the Arbitration Act. It quoted Nyutu Agrovet rejecting the proposition that an issue of general public importance should necessarily deserve an appeal, because such an issue cannot be identified with precision given its underlying dynamics.

p. 4

Legal principles established

#
  • For certification under Article 163(4)(b), the intending appellant must show the issue transcends the circumstances of the particular case and has a significant bearing on the public interest, and where a point of law is raised, that there is uncertainty in the law requiring clarification.
  • Questions of general public importance are not, by themselves, a basis for granting leave to appeal from arbitration matters; exceptional reasons are required because arbitration discourages court intervention.

Court orders

#
  1. 1.The application dated 5th December 2014 fails and is dismissed
  2. 2.Costs of the application awarded to the respondent

Authorities

#

Legislation

  • Constitution of Kenya, 2010Article 163(4)(b)
  • Constitution of Kenya, 2010Article 2(5) and (6)
  • Arbitration ActSection 36
  • Arbitration ActSection 37
  • Arbitration ActSection 37(1)(b)
  • Arbitration ActSection 35
  • New York Convention on Recognition and Enforcement of Foreign Arbitral AwardsArticle 5(2)(b)
  • UNCITRAL Model LawArticle 2

Cases cited (5)

  • Muiri Coffee Estate vs. Kenya Commercial Bank Ltd & another
    [2014] eKLR

    Issues of law of repeated occurrence may become matters of general public importance for Supreme Court appeal (cited by applicant)

  • Hermanus Phillipus Steyn vs. Giovanni Gnecchi-Ruscone
    Supreme Court Application No. 4 of 2012; [2013] eKLR

    Principles applicable in granting or refusing certification/leave to appeal to the Supreme Court

  • Langata Development Co. Ltd vs. Mary Wanjiru Dames
    [2019] eKLR

    Court of Appeal lacks jurisdiction to entertain certification application where no notice of appeal filed (cited by respondent)

  • Nyutu Agrovet Limited vs. Airtel Networks Kenya Limited; Chartered Institute of Arbitrators-Kenya Branch (interested party)
    [2019] eKLR

    Guidance on appeals under the Arbitration Act; general public importance is not a basis for granting leave

  • Synergy Industrial Credit Limited vs. Cape Holdings Limited
    [2019] eKLR

    Supreme Court guidance on Sections 35 and 37 of the Arbitration Act; no uncertainty remains

On appeal from
Court of Appeal at Mombasa
Civil Appeal No. 38 of 2013
Jurisdiction invoked
Article 163(4)(b) of the Constitution - application for certification that a proposed appeal to the Supreme Court raises matters of general public importance

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (2)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Tanzania National Roads Agency v Kundan Singh Construction Limited", Case Analysis (2022). Civil Application 52 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/773/eng@2022-06-10

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.