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Court of AppealOtherApplication dated 17th October 2024· [2025] KECA 683 (KLR)

Safaricom Plc v Kinetic Controls Limited

Court of Appeal
11 April 2025
MNMumbi Ngugi
583 words in judgment
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The bottom line

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Safaricom's bid to appeal an arbitration-related High Court ruling will be heard by a full Court of Appeal bench, since leave requires exceptional circumstances.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi, delivered by Mumbi Ngugi, JA, on a single-judge application dated 17th October 2024 by Safaricom PLC seeking leave to appeal against the judgment of the High Court (Visram J.) dismissing its appeal under section 39(3)(b) of the Arbitration Act from an arbitral award. The underlying dispute arose from a 2013 maintenance services contract; after the arbitrator (A.F. Gross) awarded the respondent Kshs 39,072,716 with 12% simple interest from 19th January 2018, Safaricom, having paid the admitted Kshs 23,247,871.25, exercised its reserved right of appeal under section 39(2) of the Arbitration Act before the High Court, which dismissed the appeal. The application was brought under sections 3A and 3B of the Appellate Jurisdiction Act, rule 41 of the Court of Appeal Rules 2022, and section 39(3)(b) of the Arbitration Act. Both parties accepted that the Court's jurisdiction over High Court decisions on arbitral awards arises only in exceptional circumstances per Nyutu Agrovet. Relying on rule 55(2)(b) of the Court's Rules and the Kamimi Company decision, the single judge held that such a leave application falls for determination by a full bench. She directed the Registrar to list the application before a full bench and made no order as to costs. The merits of the leave application were not decided, and the High Court judgment was not disturbed.

Key legal issues

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Allocation of leave applications to a full bench

Holding

An application for leave to appeal to the Court of Appeal from a High Court decision on an application to set aside an arbitral award must be determined by a full bench, not a single judge.

Reasoning

The Court noted the settled position that leave is required before an appeal lies from a High Court decision under section 35 of the Arbitration Act, and that whether exceptional circumstances exist is a decision reserved to a full bench by rule 55(2)(b) of the Court of Appeal Rules, following Kamimi Company v Soil Merchants. The single judge therefore made no merits determination but directed the Registrar to list the matter before a full bench.

p. 2

Legal principles established

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  • The Court of Appeal assumes jurisdiction over matters emanating from the High Court in respect of an arbitral award under section 35 of the Arbitration Act only in exceptional circumstances.
  • A decision on whether exceptional circumstances exist to warrant grant of leave to appeal, as with all matters requiring leave, is a matter for determination by a full bench of the Court under rule 55(2)(b) of the Court of Appeal Rules.

Court orders

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  1. 1.The Registrar of the Court to list the application before a full bench of the Court for hearing and determination
  2. 2.No order as to costs
On appeal from
High Court
Jurisdiction invoked
Sections 3A and 3B of the Appellate Jurisdiction Act; rule 41 of the Court of Appeal Rules 2022; section 39(3)(b) of the Arbitration Act

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, "Safaricom Plc v Kinetic Controls Limited", Case Analysis (2025). Application dated 17th October 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/683/eng@2025-04-11

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