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Case Brief · caselaw.co.ke
Court of AppealDismissedEldoret Civil Appeal (notice of appeal dated 24th January 2023; memorandum of appeal dated 21st February 2024)· [2025] KECA 840 (KLR)

The Monarch Insurance Company Limited v Abdirahman Nurrow Issak & 1 other

Court of Appeal
9 May 2025
Mohamed Abdulahi WarsameM. WarsameJMJ. MativoMGM. Gachoka
4,312 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~17 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal threw out an insurer's arbitration appeal because it never first obtained the required leave to appeal.

What this practically means

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Executive summary

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This was an appeal by an insurer against a High Court decision (Matheka, J., 12th October 2022) refusing to set aside an arbitral award of Kshs. 10,310,000.00 and Kshs. 10,690,000.00 plus interest and costs in favour of two haulier respondents whose trucks and tankers were destroyed by fire in Juba, South Sudan while covered by comprehensive insurance policies and COMESA Yellow Cards. The appellant attacked the tribunal's composition (absence of the umpire), the application of extraneous contractual terms, the geographical scope of cover, public policy, and the awards on costs and interest. Before addressing the merits, the Court of Appeal examined its own jurisdiction. Following the Supreme Court's decisions in Nyutu Agrovet and Synergy Industrial Credit, it reaffirmed that appeals from High Court section 35 decisions are exceptionally limited, lie only in the clearest of cases where the High Court acted outside section 35 with grave manifest wrongness causing a miscarriage of justice, and require prior leave. The appellant conceded it had never sought leave, inviting the court to apply the oxygen principles instead. The court held that leave is a jurisdictional prerequisite that cannot be bypassed by the oxygen principles or the Constitution, and that a party must file an application for leave demonstrating exceptional circumstances. Finding the appeal incompetent and incurably defective, the court declined to consider the merits and dismissed the appeal with costs to the respondents. The judgment binds lower courts to treat leave as a mandatory jurisdictional gateway for arbitration-related appeals from section 35 rulings.

Key legal issues

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01

Whether the Court of Appeal could entertain an appeal against a High Court refusal to set aside an arbitral award without leave

Holding

The appeal was incompetent for want of leave; the Court lacked jurisdiction and declined to consider the merits

Reasoning

Relying on Nyutu Agrovet and Synergy Industrial Credit, the court restated that appeals from section 35 decisions are circumscribed and require leave founded on exceptional circumstances such as unfairness or misconduct in the decision-making process. The appellant neither applied nor sought leave, a grave omission going to the root of jurisdiction. Jurisdiction being everything, the court could not entertain the appeal, and the oxygen principles could not cure the defect.

p. 8
02

The scope of non-interference by courts in arbitral proceedings

Holding

The principle of minimal court intervention under section 10 of the Arbitration Act remains the guiding star where parties voluntarily adopt arbitration

Reasoning

The judgment opens by affirming that arbitration is an alternative dispute resolution mechanism embedded in Article 159(2)(c) of the Constitution and section 10 of the Arbitration Act, which bars court intervention in matters governed by the Act unless the statute provides otherwise. This framing underpins the restrictive appellate jurisdiction applied in dismissing the appeal.

p. 1

Legal principles established

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  • An appeal to the Court of Appeal from a High Court decision under section 35 of the Arbitration Act lies only in exceptional, clearest-of-cases circumstances where the High Court acted outside the grounds in section 35 with grave manifest wrongness amounting to a miscarriage of justice, and leave must first be sought and obtained
  • Failure to obtain leave to appeal from a section 35 decision is a jurisdictional bar, not a technicality curable by the oxygen principles; the appeal must be preceded by an application for leave setting out exceptional circumstances

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal awarded to the respondents
On appeal from
High Court of Kenya, Nakuru
HCCC No. 388 of 2012 consolidated with HC Misc. App. No. E216 of 2021
Jurisdiction invoked
Residual jurisdiction under the Arbitration Act (section 35 decisions of the High Court) as circumscribed by the Supreme Court in Nyutu Agrovet; leave to appeal required

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, "The Monarch Insurance Company Limited v Abdirahman Nurrow Issak & 1 other", Case Analysis (2025). Eldoret Civil Appeal (notice of appeal dated 24th January 2023; memorandum of appeal dated 21st February 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/840/eng@2025-05-09

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