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Court of AppealAllowedCivil Application E725 of 2024

Safaricom Limited v Abiero & another

Court of Appeal
19 December 2025
3,677 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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Safaricom Limited applied for leave to appeal from a ruling of the High Court (Mabeya, J) dated 6th December 2024, which dismissed its application to set aside an arbitral award of approximately Kshs. 517 million awarded to Millicent Abiero and Justus Obuya over a botched M-Pesa GlobalPay visa-fee transaction, and allowed enforcement. The respondents had claimed that a charge-back by Safaricom delayed the 1st respondent's UK visa, causing loss of Sterling Pounds 3,136,000. Safaricom had twice challenged the tribunal's jurisdiction: first under section 17 (absence of an arbitration clause), dismissed on 3rd October 2023 and not moved to the High Court within 30 days; and second, on party autonomy/locus standi of the 1st respondent as a non-signatory, determined in the final award. Before the High Court, Safaricom framed the second challenge as a public policy ground under section 35. The Court of Appeal, restating the narrow Nyutu Agrovet and Synergy Industrial Credit thresholds, held that those thresholds apply equally where the High Court declines to set aside an award. It agreed that Safaricom properly raised the party autonomy issue under section 35 and correctly framed it as public policy, but found that the High Court dealt with the unambiguous contention superficially, failing to analyse the arguments before concluding the award was not contrary to public policy. That superficial treatment amounted to the High Court determining the application outside the ambit of section 35. The court granted leave to appeal, with costs of the application to abide the outcome of the appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 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. 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. 3.Whether the High Court's treatment of the party autonomy issue as a public policy ground was correct

Key legal issues

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01

Threshold for leave to appeal from a refusal to set aside an arbitral award

Holding

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.

Reasoning

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.

p. 7
02

Whether the High Court adequately determined the public policy ground

Holding

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.

Reasoning

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.

p. 8
03

Framing of the party autonomy challenge

Holding

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.

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 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. 2.Costs of the application to abide the outcome of the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority

Wrote the judgment

majority

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

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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.
p. 8Final orders - leave to appeal granted
The costs of this application shall abide the outcome of the appeal.
p. 8Costs order
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.
p. 1Nyutu Agrovet threshold, as quoted with approval
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
p. 8Basis for granting leave

Issues in the judgment

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minor

The 2nd respondent is spelled 'Justus Obuya' in the coram but 'Justus Obuya' in the caption.

minor

The award figure is stated as 3,163,000 Sterling Pounds in the award extract but the claim pleaded 3,136,000.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.