China Railway Construction Engineering v Automated Entrance Systems Limited; Trademark Africa (Interested Party) (Civil Appeal (Application) E154 of 2025) [2025] KECA 1723 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed you cannot appeal a court order preserving assets for arbitration without first getting the court's permission, or your case is struck out.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether leave was required before appealing from the High Court order made under section 7 of the Arbitration Act, and if so whether the application was competent
- 2.Whether the intended appeal is arguable
- 3.Whether, if not granted stay, the intended appeal would be rendered nugatory
Key legal issues
#Whether leave was required before an appeal could lie from an interim preservation order issued under section 7 of the Arbitration Act
Yes. Section 7 confers no right of appeal, and section 39 is confined to arbitral awards; therefore leave under section 75 of the Civil Procedure Act and Order 43 of the Civil Procedure Rules is mandatory, and the appeal filed without it is incompetent.
The court characterised the ruling under challenge as expressly rendered pursuant to section 7 of the Arbitration Act, which empowers the High Court to grant interim measures of protection. That provision is silent on appeals, and no right of appeal can be implied from silence. Section 39 permits appeals on questions of law only from arbitral awards, so it does not cover interlocutory rulings under section 7. Reliance was placed on the decision in Anne Mumbi Hinga v Victoria Njoki Gathara. Since the applicant neither sought nor obtained leave, the application lacked the jurisdictional foundation for competence.
Whether the arguability and nugatory-cause limbs of the rule 5(2)(b) test had to be reached
No. Jurisdictional competence was a threshold question that had to be resolved before engaging the two limbs; the application failed at that threshold and the two limbs were not decided.
The court acknowledged the trite two-limb test for rule 5(2)(b) applications but held that before addressing it the court had to be satisfied that the application and the intended appeal were competent to confer jurisdiction. Having found the absence of mandatory leave fatal, the court did not traverse the merits of arguability or nugatory-cause, striking out the application instead.
Legal principles established
#- An order made under section 7 of the Arbitration Act does not carry an automatic right of appeal; a party aggrieved by such an interlocutory order must first obtain leave under section 75 of the Civil Procedure Act and Order 43 of the Civil Procedure Rules before an appeal can lie.
- The Arbitration Act is a self-contained code whose avenues of appeal are confined to those expressly conferred; section 39 appeals on questions of law extend only to arbitral awards, not interlocutory rulings made under section 7.
Court orders
#- 1.The notice of motion dated 8th April 2025 seeking stay of execution pending the intended appeal is struck out for want of leave
- 2.Costs of the application to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi, Commercial and Tax Division
- Milimani HCOS No. E615 of 2024
- Jurisdiction invoked
- Rule 5(2)(b) and rule 43 of the Court of Appeal Rules and Article 50 of the Constitution; competence considered under section 75 of the Civil Procedure Act and Order 43 of the Civil Procedure Rules
Relief refused
#Stay of execution of the High Court ruling of 20th December 2024 pending the intended appeal
The application was incompetent because no leave to appeal from an interlocutory order made under section 7 of the Arbitration Act had been sought or obtained
Costs
Costs of the application awarded to the respondent
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.
That provision, in our respectful view, does not confer an automatic right of appeal.
the Arbitration Act is a self-contained code and the avenues of appeal are confined to those expressly conferred.
Section 39 of the Arbitration Act which permits an appeal on a question of law, is limited to arbitral awards and does not extend to interlocutory rulings made under section 7.
In the premises, we hold that this application is incompetent for want of leave and is hereby struck out with costs to the respondent.
Issues in the judgment
#The judgment states the preservation amount inconsistently in the applicant's submissions, once as USD 525,554.29 and once as USD 525,554.20.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "China Railway Construction Engineering v Automated Entrance Systems Limited; Trademark Africa (Interested Party) (Civil Appeal (Application) E154 of 2025) [2025] KECA 1723 (KLR)", Case Analysis (2025). Civil Appeal No. E154 of 2025 (Application). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1723/eng@2025-10-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.