Gachuhi & another v Evangelical Mission for Africa & another
The bottom line
#Supreme Court cannot hear arbitration award appeals unless constitutional issues are raised.
What this practically means
#The Supreme Court struck out a case because it lacked the power to hear it. The dispute was about an arbitral award that had been set aside by the High Court and upheld by the Court of Appeal. The Supreme Court said its job is only to handle cases that involve interpreting the Constitution. Since this case was just about the Arbitration Act, the Court had no jurisdiction. This means the appeal ended at the Court of Appeal.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Supreme Court has jurisdiction under Article 163(4)(a) of the Constitution to entertain the petition and the application for stay of execution.
Key legal issues
#Whether the Supreme Court has jurisdiction under Article 163(4)(a) of the Constitution to hear an appeal from a Court of Appeal judgment that affirmed a High Court decision setting aside an arbitral award under Section 35 of the Arbitration Act.
The Supreme Court lacks jurisdiction under Article 163(4)(a) to entertain such an appeal because the dispute did not involve the interpretation or application of the Constitution; it was confined to the grounds for setting aside an arbitral award under Section 35 of the Arbitration Act.
The Court examined the record and found that the High Court set aside the arbitral award under Section 35(2)(b)(ii) for being against public policy, and the Court of Appeal confined itself to whether the High Court erred in that determination. No issues of constitutional interpretation or application arose. The Court relied on its earlier decision in Geochem Middle East v Kenya Bureau of Standards, which expressly held that no further appeal lies to the Supreme Court from a Court of Appeal judgment on a Section 35 determination. The Court therefore struck out the petition and dismissed the stay application for lack of jurisdiction.
Legal principles established
#- Supreme Court jurisdiction under Article 163(4)(a) requires constitutional interpretation or application.
- No further appeal lies to the Supreme Court from a Court of Appeal decision on Section 35 of the Arbitration Act, except in very narrow circumstances.
- A dispute confined to grounds for setting aside an arbitral award under Section 35 does not involve constitutional interpretation.
- The principle of expedition in arbitration matters limits further appeals to the Supreme Court.
- The Supreme Court relied on its precedent in Geochem Middle East v Kenya Bureau of Standards.
Court orders
#- 1.The Notice of Motion dated March 30, 2023 and filed on April 4, 2023 be and is hereby allowed
- 2.The Notice of Motion dated March 23, 2023 and filed on March 28, 2023 be and is hereby dismissed
- 3.The Petition dated March 10, 2023 and filed on March 16, 2023 be and is hereby struck out
- 4.The petitioners shall bear the respondents’ costs
- 5.The sum of Kshs 6,000/-, deposited as security for costs upon lodging of this appeal, be refunded to the petitioners
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Court of Appeal
- Civil Appeal No 159 of 2015
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
Relief refused
#Stay of execution of the Judgment and Orders of the Court of Appeal delivered in Civil Appeal No 159 of 2015 on February 3, 2023
The Court lacked jurisdiction to entertain the application.
Order restraining the 1st respondent from excavating, developing or carrying out any developments on LR No 2951/84
The Court lacked jurisdiction to entertain the application.
Order of injunction restraining the 1st respondent from denying the petitioners access to the suit property
The Court lacked jurisdiction to entertain the application.
Costs
The petitioners shall bear the respondents’ costs
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.
we find that we lack the jurisdiction to entertain the petitioners’ application for stay of execution and the petition dated March 10, 2023
we now declare that in conformity with the principle of the need for expedition in arbitration matters, where the Court of Appeal assumes jurisdiction in conformity with the principle established in these two decisions, and delivers a consequential Judgment, no further appeal should ordinarily lie therefrom to this Court.
Key timeline
#Practical implications
#Limit appeals in arbitration cases
When challenging arbitral awards, ensure you raise constitutional issues if you want Supreme Court review. Otherwise, the Court of Appeal is final. Plan litigation strategy accordingly to avoid wasted costs and delays.
Arbitration awards are final
If you lose an arbitration and the award is set aside by the High Court and upheld by the Court of Appeal, you cannot appeal to the Supreme Court unless there is a clear constitutional question. This finality reduces costs and delays in commercial disputes.
Know your appeal rights
If you are involved in arbitration, understand that the Supreme Court will not hear your case unless it involves interpreting the Constitution. Most arbitration disputes end at the Court of Appeal, so plan accordingly.
Frequently asked questions
#Can I appeal an arbitration award to the Supreme Court in Kenya?+
Generally no. The Supreme Court only hears appeals involving constitutional interpretation. Arbitration award disputes under Section 35 of the Arbitration Act end at the Court of Appeal unless a constitutional issue arises.
What is the effect of the Kimani Gachuhi v Hwa Ock Im case in Kenya?+
The Supreme Court struck out the petition, confirming it has no jurisdiction to hear appeals from Court of Appeal decisions on arbitration award setting aside. This reinforces finality in arbitration.
How do I appeal a High Court decision setting aside an arbitral award in Kenya?+
You can appeal to the Court of Appeal. But further appeal to the Supreme Court is not allowed unless the case involves interpretation or application of the Constitution.
What does Article 163(4)(a) of the Kenyan Constitution say about appeals?+
It allows appeals from the Court of Appeal to the Supreme Court only in cases involving the interpretation or application of the Constitution. This limits Supreme Court jurisdiction.
Cite this brief
#Cite this brief
Caselaw, "Gachuhi & another v Evangelical Mission for Africa & another", Case Analysis (2023). Petition (Application) E006 of 2022. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2023/62/eng@2023-06-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.