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Court of AppealDismissedNot stated in the judgment· [2026] KECA 1134 (KLR)

Abdullahi Abdi Harabe v Mohammed Mohamud Ahmed & 1 other

Court of Appeal of Kenya
12 June 2026
WKW. KaranjaAMA.O. MucheluleWKW. Korir
2,753 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal refused to halt enforcement of an arbitral award because the appellant never obtained the leave the Arbitration Act requires before going to court.

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 (Karanja, Muchelule and Korir, JJA) on a motion dated 17th November 2025 in which Abdullahi Abdi Hirabe sought a stay of execution of a High Court ruling delivered on 14th November 2025 by Namisi, J., pending the hearing and determination of an intended appeal. The superior court had dismissed the applicant's preliminary objection, affirmed its jurisdiction, and adopted and ordered enforcement of an alleged arbitral award dated 18th August 2021, described as a sharia-based Islamic arbitration award, pursuant to section 36 of the Arbitration Act, while disallowing additional sums such as VAT and legal fees not part of the award. The applicant contended before the Court of Appeal that the process was an informal adjudication by non-certified arbitrators, that no valid arbitration agreement existed within section 4 of the Arbitration Act, and that enforcement would expose him to committal to civil jail. The respondents opposed, arguing the appeal was not arguable, no substantial loss was shown, and no security was offered. The Court held that Rule 5(2)(b) confers original, special and discretionary jurisdiction, but that it is properly invoked only where the intended appeal is competent and grounded in a legally cognisable framework. Because the intended challenge arose from recognition and enforcement of an arbitral award under the self-contained statutory regime of the Arbitration Act - founded on the UNCITRAL Model Law's severe restriction of judicial intervention - and because it was admitted that no leave or statutory recourse had been sought as a precondition to appellate intervention, the Court found its Rule 5(2)(b) jurisdiction was not properly invoked and the motion was incompetent. The motion was dismissed with costs.

Key legal issues

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Whether the Court's Rule 5(2)(b) jurisdiction can be invoked where the intended appeal stems from a recognition and enforcement ruling under sections 35 and 36 of the Arbitration Act without prior leave

Holding

The motion is incompetent because the mandatory statutory framework for challenging arbitral awards and obtaining leave for appellate intervention was not complied with.

Reasoning

The Court held that although Rule 5(2)(b) confers original, special and discretionary jurisdiction independent of the appeal, it is only properly invoked where there is a competent intended appeal anchored in a legally cognisable framework. The Arbitration Act, based on the UNCITRAL Model Law, severely restricts the court's role; intervention requires prior party consent and leave. The applicant admitted no leave was sought in the arbitral proceedings, so the Rule 5(2)(b) jurisdiction was not properly invoked and the motion was incompetent.

p. 5

Legal principles established

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  • Rule 5(2)(b) jurisdiction is properly invoked only where there is a competent intended appeal and the motion is grounded within a legally cognisable appellate framework.
  • Where the substratum of an intended appeal arises from arbitral proceedings governed by the Arbitration Act's self-contained regime, appellate intervention requires prior leave or statutory recourse; without it, a Rule 5(2)(b) motion is incompetent.
  • Court intervention against arbitral proceedings or awards is valid only with the prior consent of the parties, and any consent is confined to questions of law; appeals under section 39 of the Arbitration Act require leave.

Court orders

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  1. 1.The motion dated 17th November 2025 is dismissed with costs
On appeal from
High Court of Kenya
Not stated in the judgment
Jurisdiction invoked
Sections 3A and 3B of the Appellate Jurisdiction Act; Rules 1(2), 4, 5(2)(b) and 44 of the Court of Appeal Rules, 2022; Article 159 of the Constitution of Kenya, 2010

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, "Abdullahi Abdi Harabe v Mohammed Mohamud Ahmed & 1 other", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1134/eng@2026-06-12

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