County Government of Kitui v Torgbor & another (Civil Appeal 176 of 2020) [2026] KECA 121 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that once you lose a bid to set aside an arbitral award, you cannot restart the fight through judicial review.
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 learned Judge erred in upholding the preliminary objection by the 2nd respondent and in striking out the appellant's application for leave to apply for judicial review on grounds that the same was an abuse of the process of the court
Key legal issues
#Whether the High Court properly struck out the judicial review application as an abuse of process
Yes. The application for leave to seek certiorari would have reopened the arbitral award for challenge, which had been denied by a court of concurrent jurisdiction, amounting to a collateral attack and abuse of process; the appellant could not, having exhausted the Arbitration Act procedure, seek a second bite at the cherry via judicial review.
The dispute was referred to arbitration under the parties' contract; the award was made and amended; the appellant's set-aside application in the Commercial Division was struck out; it then sought leave for judicial review to quash the same award. The Court of Appeal, applying the limited grounds for interfering with discretionary decisions, found no misdirection in law or fact and no plainly wrong decision. Estoppel and res judicata share the underlying principle of finality and bar relitigation of issues.
Whether the Judge erred in considering res judicata and estoppel which, it was argued, were not pleaded in the preliminary objection
No. The preliminary objection expressly pleaded that the application was an affront to public policy, an attempt to forum shop, and that the appellant was estopped and precluded; abuse of process was therefore properly before the court.
The 2nd respondent's preliminary objection included the ground that the appellant was 'estopped, debarred and precluded' from raising objections not raised under the Arbitration Act, and that the application was a forum-shopping affront to public policy. The issue of abuse of court process was thus squarely raised. Further, the High Court's inherent jurisdiction under section 3A of the Civil Procedure Act to prevent abuse of process is preserved.
Legal principles established
#- The Court of Appeal will not interfere with a discretionary decision unless the judge misdirected himself in law, misapprehended the facts, took into account irrelevant considerations, failed to take account of relevant considerations, or the decision is plainly wrong
- A party who has failed in a bid to set aside an arbitral award under the statutory procedure cannot reopen the award by way of judicial review; such an attempt is a collateral attack, an abuse of process and barred by estoppel and res judicata
- The High Court's inherent power under section 3A of the Civil Procedure Act to make orders necessary for the ends of justice or to prevent abuse of the process of court is preserved
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal are awarded to the 2nd respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Misc Civil Application No. 254 of 2018
- Jurisdiction invoked
- First appeal to the Court of Appeal against a High Court ruling (not stated by specific provision in the judgment)
Relief refused
#Leave to apply for judicial review (certiorari) to quash the arbitral award
The application would constitute a collateral attack on the High Court's earlier decision striking out the set-aside application, and was an abuse of the process of the court
Costs
The appeal is dismissed with costs to the 2nd 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.
In conclusion, the appeal fails and is hereby dismissed with costs to the 2nd respondent.
the appellant could not, after exhausting the statutory procedure set out in the Arbitration Act, hope to get a second bite at the cherry by proceeding by way of judicial review
an application for leave to commence judicial review proceedings of the arbitral award will have the same effect of reopening the said award for challenge, which has been expressly denied in a decision by a court of concurrent jurisdiction, and will thus amount to collateral attack of the said decision.
That the doctrine of res judicata is based on the principle of finality which is a matter of public policy.
The Court of Appeal is only entitled to interfere if one or more of the following matters are established: first, that the Judge misdirected himself in law; secondly, that he misapprehended the facts
Under section 3A of the Civil Procedure Act the High Court's inherent power to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of court is preserved.
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, "County Government of Kitui v Torgbor & another (Civil Appeal 176 of 2020) [2026] KECA 121 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/121/eng@2026-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.