Afraha Flour Mills Ltd & 24 others v Ministry of Agriculture, Livestock & Fisheries & another
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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.Whether the intended challenge falls within the 'exceptional and limited circumstances' that attract the residual jurisdiction of the Court
- 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
#Whether the intended appeal falls within the exceptional circumstances justifying the Court of Appeal's residual jurisdiction over arbitral awards
No. The applicants' complaint was a challenge to the merits of the arbitral award, which does not attract the residual jurisdiction.
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.
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
It did not. The disallowance of the invoices rested on documentary compliance, a matter within the Tribunal's factual and evidentiary jurisdiction.
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.
Legal principles established
#- 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
#- 1.The application for leave to appeal is dismissed with costs to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
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
#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
Costs
The application for leave lacks merit and is hereby dismissed with costs to the respondents.
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.
It is evident from the above reasons that the application for leave lacks merit and is hereby dismissed with costs to the respondents.
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.
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
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.