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Court of AppealDismissedCivil Application E630 of 2025

Afraha Flour Mills Ltd & 24 others v Ministry of Agriculture, Livestock & Fisheries & another

Court of Appeal
25 September 2026
1,860 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that complaining an arbitrator got the evidence wrong is not a valid reason to overturn an arbitral award.

What this practically means

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Executive summary

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The applicants, members of the Cereal Millers Association, obtained an arbitral award from sole arbitrator Prof. Githu Muigai directing the respondents to pay Kshs. 2,313,855,953 out of a claim of Kshs. 2,582,110,035.42 arising from maize flour supplied under the Government's 2022 maize flour subsidy programme. The arbitrator disallowed Kshs. 268,254,082.42 because the supporting invoices were unsigned and unstamped. The applicants' application under section 35 of the Arbitration Act to set aside that part of the award, or remit it for review, was dismissed by the High Court (P. M. Mulwa, J) on 16th October 2025 on the ground that the complaint challenged the merits of the award. The applicants then sought leave from the Court of Appeal to appeal against that Ruling, invoking the Supreme Court's Nyutu Agrovet and Synergy Industrial Credit jurisprudence on residual jurisdiction. The respondents opposed through a preliminary objection on res judicata and on the basis that no exceptional circumstances or manifest injustice were demonstrated. The Court of Appeal (L. Kimaru, Munyao Sila and J. O. Okello, JJA) held that the applicants were in substance seeking substitution of part of the award on the basis that the arbitrator mis-evaluated evidence, a complaint falling in the province of appeals and outside section 35(2). No breach of public policy or miscarriage of justice was discerned. The application for leave was dismissed with costs to the respondents.

Questions the Court framed

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

  1. 1.Whether the applicants have established sufficient grounds to enable the Court to grant leave to appeal against the refusal by the High Court to set aside part of the arbitral award and/or remit it to the sole arbitrator
  2. 2.Whether the intended challenge falls within the 'exceptional and limited circumstances' that attract the residual jurisdiction of the Court
  3. 3.Whether the High Court Ruling caused a miscarriage of justice as to attract intervention under section 35(2)(b) of the Arbitration Act

Key legal issues

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01

Whether the intended appeal falls within the exceptional circumstances justifying the Court of Appeal's residual jurisdiction over arbitral awards

Holding

No. The applicants' complaint was a challenge to the merits of the arbitral award, which does not attract the residual jurisdiction.

Reasoning

The Court applied the Supreme Court's decisions in Nyutu Agrovet and Synergy Industrial Credit, which confine Court of Appeal intervention to exceptional and limited circumstances. The applicants sought substitution of part of the award because the arbitrator allegedly mis-evaluated evidence. That is a merits challenge, outside section 35(2), and no breach of public policy or miscarriage of justice was discerned.

p. 4
02

Whether the High Court's refusal to set aside part of the award caused a miscarriage of justice under section 35(2)(b) of the Arbitration Act

Holding

It did not. The disallowance of the invoices rested on documentary compliance, a matter within the Tribunal's factual and evidentiary jurisdiction.

Reasoning

The High Court had found that the treatment of unstamped invoices, interest and costs was extensively canvassed before the Tribunal, and the disallowance was grounded on lack of documentary compliance. Such evaluation falls within the Tribunal's factual and evidentiary jurisdiction, so no miscarriage of justice arose to warrant leave.

p. 3

Legal principles established

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  • The Court of Appeal has residual jurisdiction to hear an appeal from the High Court's decision under section 35(2) of the Arbitration Act, but only where the applicant establishes exceptional and limited circumstances.
  • A complaint that an arbitrator improperly evaluated evidence and reached an unacceptable verdict is an appellate complaint, not a ground for setting aside an arbitral award.

Court orders

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  1. 1.The application for leave to appeal is dismissed with costs to the respondents

The bench

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

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
High Court of Kenya at Nairobi
HCCOMMARB No. E073 of 2024
Jurisdiction invoked
Sections 3A & 3B of the Appellate Jurisdiction Act and section 35(2)(b) and (4) of the Arbitration Act; Rule 41 of the Court of Appeal Rules

Relief refused

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Leave to appeal to the Court of Appeal against the High Court Ruling refusing to set aside part of the arbitral award or remit it for review

The applicants were seeking substitution of part of the award on the basis that the arbitrator mis-evaluated evidence, which falls in the province of appeals and outside the narrow exceptional circumstances for residual jurisdiction

p. 4

Costs

The application for leave lacks merit and is hereby dismissed with costs to the respondents.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It is evident from the above reasons that the application for leave lacks merit and is hereby dismissed with costs to the respondents.
p. 4Final orders - dismissal of the application for leave
Such argument falls in the province of appeals and cannot form a basis for the setting aside of an arbitral award in circumstances where the parties chose to resolve any dispute relating to their commercial dispute by arbitration.
p. 4Merits challenges to arbitral awards are appellate, not setting-aside, grounds
this Court has residual jurisdiction to hear and determine an appeal from the High Court in exercise of its discretion under Section 35(2) of the Arbitration Act provided the applicant is able to establish existence of exceptional circumstances
p. 2Residual jurisdiction conditional on exceptional circumstances

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, "Afraha Flour Mills Ltd & 24 others v Ministry of Agriculture, Livestock & Fisheries & another", Case Analysis (2026). Civil Application E630 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1731/eng@2026-09-25

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