Safaricom Limited v Abiero & another
The bottom line
#Kenya's Court of Appeal allowed Safaricom to appeal a High Court ruling that upheld a Kshs. 517 million arbitral award, because the judge analysed the arguments too superficially.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether Safaricom has met the heightened threshold for permission to appeal from the High Court's refusal to set aside an arbitral award under section 35 of the Arbitration Act
- 2.Whether the High Court conflated the first and second jurisdictional challenges and failed to determine the specific question of the existence of an arbitration agreement with the 1st respondent
- 3.Whether the High Court's treatment of the party autonomy issue as a public policy ground was correct
Key legal issues
#Threshold for leave to appeal from a refusal to set aside an arbitral award
Leave is granted only in the clearest of cases where the High Court makes a grave and manifestly wrong decision that completely closes the door of justice; the same test governs whether the court set aside or declined to set aside.
The court adopted the Supreme Court's circumscribed jurisdiction in Nyutu Agrovet and Synergy Industrial Credit, holding that the restricted appeal window exists whether the High Court grants or refuses setting aside, and that the jurisdiction must be sparingly exercised.
Whether the High Court adequately determined the public policy ground
It was insufficient for the High Court to state that Safaricom had not specified the public policy relied on; the contention was unambiguous and the Judge should have analysed the arguments before concluding the award was not contrary to public policy.
The Judge himself recorded Safaricom's contention that allowing a non-signatory's claim offended public policy given statutory strictures on parties to arbitration agreements. By failing to analyse that contention, the High Court failed to consider whether the award was a true candidate for setting aside, thereby acting outside section 35.
Framing of the party autonomy challenge
Safaricom properly raised the second jurisdictional issue (party autonomy) before the High Court under section 35, having determined it in the final award, and correctly framed it as a public policy issue.
Because the second jurisdictional challenge was determined in the final award rather than at the preliminary stage, Safaricom could not be constrained to the section 17(6) 30-day window; but having chosen section 35, it bore the burden of meeting those statutory thresholds.
Legal principles established
#- The narrow Nyutu Agrovet/Synergy threshold applies equally where the High Court declines to set aside an award: leave to appeal is granted only where the decision is grave and manifestly wrong and completely closes the door of justice.
- A party who elects to raise a jurisdictional complaint within the section 35 framework bears the burden of demonstrating that the complaint meets the statutory thresholds in section 35.
- A High Court that deals superficially with a clearly raised section 35 ground, without analysing the arguments, determines the setting-aside application outside the ambit of section 35, opening the door to leave to appeal.
Court orders
#- 1.Leave granted to the applicant to appeal against the ruling and order by Mabeya, J of 6th December 2024 in NRB HCCOMMARB. No. E57 of 2024
- 2.Costs of the application to abide the outcome of the appeal
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 Milimani
- HC Comm. Arb. No. E057 of 2024
- Jurisdiction invoked
- Leave to appeal from a High Court determination under section 35 of the Arbitration Act, per Article 164(3)(a) as construed in Nyutu Agrovet and Synergy Industrial Credit
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.
Ultimately, the application is merited and we do hereby grant the applicant leave to appeal against the ruling and order by Mabeya, J of 6th December 2024 in NRB HCCOMMARB. No. E57 of 2024.
The costs of this application shall abide the outcome of the appeal.
This circumscribed and narrow jurisdiction should also be so sparingly exercised that only in the clearest of cases should the Court of Appeal assume jurisdiction.
the superficial manner in which the High Court dealt with the issue amounted to the High Court failing to consider whether the award was a true candidate for setting aside within the grounds in section 35 and as a consequence determined the application outside the ambit of section 35
Issues in the judgment
#The 2nd respondent is spelled 'Justus Obuya' in the coram but 'Justus Obuya' in the caption.
The award figure is stated as 3,163,000 Sterling Pounds in the award extract but the claim pleaded 3,136,000.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Safaricom Limited v Abiero & another", Case Analysis (2025). Civil Application E725 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2306/eng@2025-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.