Isaac’s Investment Co Ltd v Archipoint Consulting Architects

The Supreme Court in Nyutu, Synergy and Geochem recognised a limited, exceptional jurisdiction in the Court of Appeal to hear section 35 appeals only in the clearest of cases of manifest injustice. In County Government of Kitui v. Power Pump Technical Co. Ltd, this Court held that whether a case falls within that jurisdiction is decided by the Court of Appeal in limine. The Supreme Court in Kampala International University reiterated that the intended appellant must first seek and obtain leave from the Court of Appeal. The applicant neither sought nor obtained such leave from this Court.

The applicant never applied within the prescribed time, or at all, to set aside the award under section 35; its later application to set aside the order adopting the award was dismissed. Following Vio Tech Ltd v. Upperhill Chambers and Kampala International University, an appeal under the exceptional jurisdiction can only lie where the High Court, in setting aside an award, stepped outside the grounds in section 35 and made a decision so grave as to close the door of justice. No such decision exists here.

In Nyutu, the Supreme Court expressly rejected the plea to declare sections 10 and 35 of the Arbitration Act unconstitutional, holding that statutory limitations on appeals do not necessarily infringe the right of access to justice. Arbitration is constitutionally underpinned; the Arbitration Act is a complete code; and judicial intervention is strictly limited to instances provided by the Act. The applicant's constitutional petition was therefore a collateral attack that could not found an arguable appeal.