Vio Tech Ltd v Upperhill Chambers Ltd & another (Civil Application E026 of 2024) [2025] KECA 698 (KLR)
The bottom line
#Kenya's Court of Appeal refused to let Vio Tech take its arbitration enforcement dispute to the Supreme Court, clearing the way for the award's enforcement.
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 absence of a notice of appeal ousts the Court's jurisdiction over the application
- 2.Whether the intended appeal to the Supreme Court raises matters of general public importance warranting certification and leave under Article 163(4)(b)
- 3.Whether the decision of the High Court adopting the arbitral award should be stayed pending the intended appeal
Key legal issues
#Effect of alleged absence of a notice of appeal to this Court
The objection is immaterial because what is before the Court is an intended appeal to the Supreme Court, not an appeal to this Court; validity of a notice of appeal filed in the Supreme Court is for that Court
The respondents argued there was no proper notice of appeal and the applicant had withdrawn the earlier notice. The Court held this contention was water under the bridge: the application concerns an intended appeal to the Supreme Court, for which a notice dated 8th November 2024 was allegedly filed and served. The validity of such notice falls to the Supreme Court, not this Court.
Whether the intended appeal raises a matter of general public importance
It does not; the applicant's contention that Kenfit and Ezra Odondi Opar were misconstrued fails, as those decisions must be read with section 3(1) of the Arbitration Act defining an arbitral award to include an interim award, and the enforcement proceedings were brought by the 1st respondent, who was awarded no costs
The Court reviewed the High Court ruling, its own ruling of 25th October 2024 and the Kenfit and Ezra Odondi Opar decisions and found no incoherence. Since the 1st respondent, who sought enforcement, was not awarded costs in the award, the claim that the award was incomplete for want of costs determination was unfounded.
Scope of issues permissible on an intended appeal to the Supreme Court
The issues proposed by the applicant go beyond the scope of the impugned Court of Appeal ruling and cannot form the basis of an appeal to the Supreme Court
The intended appeal targets the ruling declining to hear an appeal against the High Court's recognition of the arbitral award. Questions about enforceability of awards with reserved costs, section 36 of the Arbitration Act, and double enforcement were not addressed in that ruling and hence were not judicially determined in the courts below, contravening the Steyn vs Ruscone and Geo Chem principles.
Limited circumstances for leave to appeal against decisions on arbitral awards
Leave to appeal against High Court decisions setting aside or affirming awards is granted only in very limited circumstances, and courts must not delve into the merits of an arbitral award
Relying on Synergy Industrial Credit, Nyutu Agrovet, Kampala International University and Njihia vs Kimani, the Court held that discretionary rulings of the Court of Appeal are not appealable to the Supreme Court absent a substantive appeal, and the applicant failed to show uncertainty in the law emanating from the impugned ruling.
Legal principles established
#- Before certification under Article 163(4)(b), the intending appellant must show an issue transcending the particular case and bearing on the public interest; factual contests and mere apprehension of miscarriage of justice do not suffice
- Not every Court of Appeal decision is appealable to the Supreme Court; discretionary pronouncements of the Appellate Court are not the occasion to turn the Supreme Court into a first appellate court absent a substantive appeal
- A question of law certified for the Supreme Court must have arisen and been judicially determined in the courts below
Court orders
#- 1.The application for certification and leave to appeal to the Supreme Court is denied
- 2.The prayer for stay of execution of the High Court decree falls away as moot
- 3.The notice of motion dated 7th October 2024 is dismissed with costs to the 1st and 2nd respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal
- Civil Application E026 of 2024 (ruling of 25th October 2024 by Musinga (P), Asike-Makhandia & M'inoti, JJ.A.)
- Jurisdiction invoked
- Article 163(4)(b) of the Constitution of Kenya (certification and leave for an intended appeal to the Supreme Court) read with sections 15 and 15B of the Supreme Court Act and rule 33 of the Supreme Court Rules
Relief refused
#Certification that the intended appeal raises questions of general public importance
The applicant did not demonstrate any issue of law of general public importance; the issues proposed were not the subject of the impugned ruling
Leave to appeal to the Supreme Court
The intended appeal offends the Supreme Court's directive against appeals against the Court of Appeal's exercise of discretion without a substantive appeal, and there is no demonstrated uncertainty in the law
Stay of execution of the decree from the High Court ruling
Having denied certification and leave, the stay application became moot
Costs
The applicant to meet the costs incurred by the 1st and 2nd respondents; the notice of motion dated 7th October 2024 dismissed with costs to the 1st and 2nd 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.
Since the 1st respondent was not awarded costs, the applicant's argument that the arbitral award was incomplete because the issue of costs was pending stands on quicksand and is thus unpersuasive.
The issues identified by the applicant for determination by the Supreme Court go beyond the scope of the said ruling. They are matters that this Court did not address in its ruling and cannot, therefore, form the basis of an appeal to the Supreme Court.
Consequently, the application for certification and leave is hereby denied.
Ultimately and for the reasons above, the notice of motion dated 7th October 2024 lacks merit and is hereby dismissed with costs to the 1st and 2nd respondents.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Vio Tech Ltd v Upperhill Chambers Ltd & another (Civil Application E026 of 2024) [2025] KECA 698 (KLR)", Case Analysis (2025). Civil Application (as stated in the motion documents; decision delivered at Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/698/eng@2025-04-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.