SBM Bank (Kenya) Ltd v Afrasia Bank Ltd (Civil Application E600 of 2025) [2026] KECA 944 (KLR)
The bottom line
#The Court of Appeal struck out SBM Bank's bid to appeal an arbitration ruling because it cited the wrong legal provision, showing exact statutory citations matter.
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 should be allowed to amend the citation of Rule 41(b) to read Rule 41(1)(b) of the Court of Appeal Rules, 2022
- 2.Whether this Court has jurisdiction to entertain the application for leave to appeal, given the failure to anchor it on sections 35 and 39 of the Arbitration Act
- 3.Whether the application for leave involves points of law of general public importance warranting leave to appeal
Key legal issues
#Whether citing a non-existent rule is a mere procedural technicality curable under Article 159 of the Constitution
The mis-citation of Rule 41(b) as Rule 41(1)(b) was curable by amendment since Rule 41(1)(b) addresses the procedure for leave applications and no prejudice was caused to the respondent
Rule 46 permits informal applications for amendment in court, and courts have wide discretion to allow amendments at any stage where necessary for determining the real question in controversy, provided they are made in good faith and cause no prejudice. The discretion under Article 159 extends to purely procedural or administrative provisions whose citation can be dispensed with in the interests of substantive justice. The respondent had substantively responded to the application, so no prejudice arose.
Whether the Court of Appeal had jurisdiction to entertain the application for leave to appeal
The Court had no jurisdiction because the application was not anchored on section 39 of the Arbitration Act, the exclusive statutory source of jurisdiction over appeals from arbitral awards
Section 10 of the Arbitration Act limits judicial intervention in arbitral matters to what the Act provides, and sections 35 and 39 constitute a closed framework for recourse against awards. Rule 41(1)(b) of the Court of Appeal Rules is merely procedural and cannot confer substantive jurisdiction. Where jurisdiction is statutorily circumscribed, the enabling provision must be explicitly cited; without it the Court must down its tools.
Legal principles established
#- A court's jurisdiction flows only from the Constitution or legislation, and cannot be expanded through judicial craft or procedure rules; the enabling jurisdictional statute must be explicitly cited where jurisdiction is circumscribed
- Where the jurisdiction of a court in a matter is specifically limited or circumscribed by statute, the enabling jurisdictional provision must be explicitly cited in the application
- The jurisdiction of the Court of Appeal to hear appeals from decisions of the High Court on arbitral awards is narrow and restricted and should be exercised sparingly
Court orders
#- 1.Amendment of the title of the application to replace Rule 41(b) with Rule 41(1)(b) allowed
- 2.The Notice of Motion dated 14th October 2025 struck out with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Misc. Application No. E386 of 2021 (arising from HCCC No. 103 of 2019)
- Jurisdiction invoked
- Sections 39(3) and (4) and 35 of the Arbitration Act read with Rule 41(1)(b) of the Court of Appeal Rules, 2022; application was found to lack the statutory anchor in the Arbitration Act
Relief refused
#Leave to appeal from the judgment of the High Court (W. Okwany J.) dated 21st July 2022 setting aside the arbitral award
The Court lacks jurisdiction because the application was not anchored on section 39 of the Arbitration Act, which is the sole source of the Court's jurisdiction over appeals from arbitral awards
Costs
The Notice of Motion dated 14th October 2025 was struck out 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.
a court of law could only exercise jurisdiction as conferred by the Constitution or other written law, and cannot arrogate to itself jurisdiction exceeding that which was conferred upon it by law nor cannot expand its jurisdiction through judicial craft or innovate
the enabling jurisdictional provision of a statute or of the Constitution must be explicitly cited to lay the legal basis for the court's authority, particularly where the jurisdiction of a court in a matter is specifically limited or circumscribed
By failing to anchor its application on section 39 of the Arbitration Act, and for the reasons explained in the foregoing, we find that we are deprived of jurisdiction to entertain the instant application
We accordingly strike out the Notice of Motion dated 14th October 2025 with costs to the respondent.
Issues in the judgment
#The judgment states that Chase Bank 'was later placed under statutory receivership and acquired by the respondent', but the context indicates Chase Bank was acquired by the applicant (SBM Bank); the reference to 'the respondent' appears to be an error
The judgment records an earlier Court of Appeal decision striking out the applicant's appeal but does not give the date or outcome of the High Court's refusal context fully; the applicant characterises the strike-out as for want of jurisdiction while the record simply states the appeal was struck out
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "SBM Bank (Kenya) Ltd v Afrasia Bank Ltd (Civil Application E600 of 2025) [2026] KECA 944 (KLR)", Case Analysis (2026). Miscellaneous Application (Leave to Appeal) arising from Civil Appeal No. E620 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/944/eng@2026-05-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.