Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedNotice of Motion dated 30th January 2024 as amended on 2nd February 2024

Cape Holdings Limited v Synergy Industrial Credit Limited (Civil Application E004 of 2024) [2025] KECA 1928 (KLR)

Court of Appeal of Kenya
21 November 2025
2,749 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal blocked Cape Holdings' second attempt to take its arbitration dispute to the Supreme Court, ruling the move was already decided.

What this practically means

#

Executive summary

#
Cape Holdings Limited applied by Notice of Motion dated 30th January 2024 (amended 2nd February 2024) for certification that its intended appeal to the Supreme Court against the Court of Appeal's ruling of 8th December 2023 - which dismissed its application to review the judgment of 6th November 2020 reinstating an arbitral award of Kshs. 1,666,118,183.00 in favour of Synergy Industrial Credit Limited - raises matters of general public importance. The proposed issues concerned whether an arbitrator can award relief not sought by the parties, whether judgments can override treaty obligations, and reliefs under Section 35 of the Arbitration Act. Synergy opposed through a preliminary objection that the application was res judicata, having regard to the Court of Appeal's refusal of certification in Civil Application No. Sup. E006 of 2020 (5th March 2021) and the Supreme Court's dismissal of the review of that refusal in E007 of 2021 (8th October 2021), in which the Supreme Court declared that no further appeal ordinarily lies from a Court of Appeal judgment exercising residual Section 35 jurisdiction. Comparing the issues now proposed with those previously advanced, the Court of Appeal found the present application was a disguised attempt to appeal the 6th November 2020 judgment through a different route. It upheld the preliminary objection, found the application res judicata, and dismissed it with costs to the respondent. The judgment was delivered on 21st November 2025 under Rule 34(4) following the death of Fred Ochieng, JA, the remaining two members being unanimous. Note: the transcript as supplied shows no coram heading naming Fred Ochieng, JA; his membership appears only from the Rule 34(4) passage.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the intended appeal against the ruling of 8th December 2023 declining to review the judgment of 6th November 2020 raises matters of general public importance warranting certification under Article 163(4)(a)
  2. 2.Whether the application is res judicata having regard to prior certification rulings in Civil Application No. Sup. E006 of 2020 and Supreme Court Application E007 of 2021

Key legal issues

#
01

Res judicata in successive certification applications

Holding

The certification issues raised were already heard and determined by both the Court of Appeal (Civil Application No. Sup. E006 of 2020, ruling of 5th March 2021) and the Supreme Court (E007 of 2021, ruling of 8th October 2021), so the application is res judicata.

Reasoning

Comparing the issues now proposed as matters of general public importance with those advanced in the earlier certification application, the court found they target the judgment of 6th November 2020 rather than the ruling declining review. The applicant is thus seeking by a different route what it already failed to obtain, and the preliminary objection succeeds.

p. 5
02

Finality of arbitration appeals under Section 35 of the Arbitration Act

Holding

Once the Court of Appeal exercises its limited residual jurisdiction under Section 35 and delivers a consequential judgment, the Supreme Court ordinarily has no jurisdiction to entertain a further appeal, so certification of such an intended appeal is futile.

Reasoning

Relying on the Supreme Court's own ruling in Cape Holdings v Synergy (E007 of 2021), which reiterated the Geo Chem Middle East holding, the court noted that arbitration is meant to provide expedition and that to allow the usual appeal mechanism to run to the very end would sound the death knell of arbitration. Certification evaluation was therefore unnecessary.

p. 4

Legal principles established

#
  • Where the Court of Appeal assumes residual jurisdiction over appeals arising from Section 35 of the Arbitration Act and delivers a consequential judgment, no further appeal should ordinarily lie to the Supreme Court; certification on such matters is barred.
  • A party cannot relitigate certification of the same intended appeal by recharacterising the target of the appeal; an application raising matters already heard and determined is res judicata.

Court orders

#
  1. 1.The applicant's application dated 30th January 2024 as amended on 2nd February 2024 is dismissed
  2. 2.Costs of the application awarded to the respondent

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
Court of Appeal of Kenya
Civil Appeal No. 81 of 2016 (ruling dated 8th December 2023)
Jurisdiction invoked
Application for certification under Article 163(4)(a) of the Constitution and the Court of Appeal Rules (Rule 34(4) invoked for delivery of the judgment)

Relief refused

#

Certification that the intended appeal to the Supreme Court raises matters of general public importance and leave to appeal

The application is res judicata and constitutes an attempt to challenge the judgment of 6th November 2020 through a different route after certification was already refused

p. 4

Costs

The application was dismissed with costs 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.

The upshot is that the applicant's application dated 30th January 2024 as amended on 2nd February 2024, fails and is hereby dismissed with costs to the respondent.
p. 5Final orders - dismissal of certification application
There is merit therefore in the preliminary objection taken by Synergy that the matters raised in the present application, though disguised as intended to challenge the ruling declining review, are matters already heard and determined by this Court and by the Supreme Court and the application is therefore res judicata.
p. 5Res judicata
where the Court of Appeal assumes jurisdiction in conformity with the principle established in these two decisions, and delivers a consequential Judgment, no further appeal should ordinarily lie therefrom to this court.
p. 5Finality of Section 35 Arbitration Act appeals (quoting the Supreme Court)
In our view, Cape Holdings is therefore seeking, through a difierent route, to achieve that which it failed to do through its application in Civil Application No. E006 of 2020, which is to appeal the judgment of this Court delivered on 6th November 2020.
p. 4Abuse of certification process / recharacterisation of appeal target
Following the untimely death of the Hon. Mr. Justice Fred Ochieng, JA prior to delivery of this judgment, and the remaining members of the Court being unanimous, this decision is delivered in accordance with Rule 34(4) of the Court of Appeal Rules.
p. 5Delivery of judgment after death of a panel member

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.

Cite this brief

#

Cite this brief

Caselaw, "Cape Holdings Limited v Synergy Industrial Credit Limited (Civil Application E004 of 2024) [2025] KECA 1928 (KLR)", Case Analysis (2025). Notice of Motion dated 30th January 2024 as amended on 2nd February 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1928/eng@2025-11-21

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