Vio Tech Limited v Upperhill Chambers Limited & another (Civil Application E026 of 2024) [2024] KECA 1496 (KLR)
The bottom line
#Kenya's Court of Appeal refused to let a company appeal an arbitration enforcement ruling, confirming that skipping the set-aside step blocks later appeals.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant satisfied the threshold for certification and leave to appeal to the Court of Appeal against the High Court ruling recognising and enforcing the arbitral award
- 2.Whether the intended appeal raises a point of law of general public importance
- 3.Whether the applicant could invoke the limited and circumscribed jurisdiction in Nyutu and Synergy in respect of a section 36 recognition and enforcement ruling where no section 35 application to set aside was made
- 4.Whether the application was incompetent for want of a notice of appeal
- 5.Whether a stay of further proceedings in the trial court should issue
Key legal issues
#Misplaced reliance on the general-public-importance certification threshold under Article 163(4)(b)
Submissions on matters of general public importance are misplaced in an application for leave to appeal from the High Court to the Court of Appeal; that threshold belongs to appeals from the Court of Appeal to the Supreme Court under Article 163(4)(b).
The applicant relied extensively on Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone, a decision governing applications under Article 163(4)(b) for leave to appeal to the Supreme Court. The Court held that threshold inapplicable because the applicant intended to appeal to the Court of Appeal from a High Court decision, not to the Supreme Court from a Court of Appeal decision.
Whether a reserved issue of costs renders an award unenforceable under section 36
The binding Court of Appeal authorities relied on (Kenfit and Ezra Odondi Opar) were distinguishable because no costs were awarded against the applicant as between it and the 1st respondent, so no issue was pending or reserved between them.
The applicant argued the award was partial and incapable of enforcement because the arbitrator reserved costs between it and the 2nd respondent. The Court found that the 1st respondent, which sought recognition and enforcement, was awarded its counterclaim without costs, meaning that as between the applicant and the 1st respondent there was finality in the award and no reserved issue. Accordingly no real point of law of general public importance arose.
Availability of the Nyutu/Synergy circumscribed appellate jurisdiction
The jurisdiction is exceptional, exists only in relation to section 35 setting-aside determinations, and cannot be invoked by a party who never applied to set aside the award; the applicant made no section 35 application.
Nyutu and Synergy concerned section 35 setting-aside applications. The ruling challenged here was made under section 36 recognising and enforcing the award. The applicant never applied to set aside the award, so it cannot invoke the narrow residual jurisdiction. The Court left open the possibility of applying that jurisdiction mutatis mutandis where both setting-aside and recognition applications were made and separately determined.
Section 39 of the Arbitration Act as a route of appeal
Section 39 could not assist the applicant because there was no pre-award agreement to appeal on questions of law, and no point of law of general public importance significantly affecting the parties' rights was identified.
Section 39 permits an application or appeal on a question of law arising from an award only where the parties agreed to that right before the award was delivered, or under section 39(3)(b) where a point of law of general public importance significantly affecting rights is shown. The applicant pointed to no such agreement, and the sole point urged (failure to follow binding precedent) was distinguishable on the facts.
Competence for want of a notice of appeal
The Court declined to determine the notice of appeal issue because the leave application had already failed on jurisdiction.
The respondents argued the applicant had withdrawn its notice of appeal, depriving the Court of jurisdiction. The Court noted a notice of appeal is foundational and mandatory in stay applications, but found it unnecessary to resolve competence since the application failed on leave, rendering the stay prayer moot.
Legal principles established
#- In an application for leave to appeal to the Court of Appeal under the limited jurisdiction arising from section 35 of the Arbitration Act, matters of general public importance are irrelevant.
- An award may be recognised and enforced under section 36 where, as between the parties to the enforcement application, no issue remains pending or reserved before the arbitral tribunal.
- A party who did not apply to set aside an arbitral award under section 35 of the Arbitration Act cannot invoke the limited and circumscribed appellate jurisdiction recognised in Nyutu and Synergy against a section 36 recognition and enforcement ruling.
- Section 39 of the Arbitration Act permits an appeal on a question of law only where the parties agreed to such a right before delivery of the award, or where the Court of Appeal is satisfied that a point of law of general importance affecting the parties' rights is involved.
- The limited and circumscribed Nyutu/Synergy jurisdiction may be available, mutatis mutandis, to intended appeals from section 36 recognition rulings only where both setting-aside and recognition applications were made and separately determined, and the recognition decision was so grave, so manifestly wrong and completely closed the door of justice.
Court orders
#- 1.The applicant's notice of motion dated 24th January 2024 is dismissed
- 2.Costs of the application to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act and rules 5(2)(b), 41, 42, 43 and 44 of the Court of Appeal Rules; the limited and circumscribed appellate jurisdiction recognised by the Supreme Court in Nyutu Agrovet Ltd v Airtel Networks Ltd arising from the Arbitration Act
Relief refused
#Certification and leave to appeal the High Court ruling of 11th January 2024
The applicant failed to bring itself within the limited and circumscribed jurisdiction recognised in Nyutu and Synergy; no point of law of general public importance was demonstrated; the cases relied on were distinguishable
Stay of further proceedings in the trial court
Having failed in the application for leave to appeal, the prayer for stay is moot
Costs
Dismissed with costs to the respondents
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.
Ultimately, the applicant's notice of motion dated 24th January 2024 has no merit and is hereby dismissed with costs to the respondents. It is so ordered.
Submissions on a matter of general public importance under the Constitution are totally misplaced in this application.
having not made any application under section 35 of the Arbitration Act to set aside the arbitral award, the applicant cannot invoke the limited and circumscribed jurisdiction recognised by the Supreme Court in Nyutu and Synergy.
To that extent, there is no pending or reserved issue for determination by the arbitral tribunal as between the applicant and the 1st respondent.
The role of courts has been greatly diminished notwithstanding the narrow window created by sections 35 and 39 of the Act.
Having failed in its application for leave to appeal, the prayer for stay of execution is moot.
Issues in the judgment
#The coram lists 'ASIKE-MAKHANDIA' without initials or given names, so the judge's name is recorded exactly as printed.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- 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
Cite this brief
#Cite this brief
Caselaw, "Vio Tech Limited v Upperhill Chambers Limited & another (Civil Application E026 of 2024) [2024] KECA 1496 (KLR)", Case Analysis (2024). Notice of Motion dated 24th January 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1496/eng@2024-10-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.