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Court of AppealDismissedNot stated in the judgment

County Government of Kitui v Torgbor & another (Civil Appeal 176 of 2020) [2026] KECA 121 (KLR)

Court of Appeal
30 January 2026
1,815 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that once you lose a bid to set aside an arbitral award, you cannot restart the fight through judicial review.

What this practically means

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Executive summary

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The County Government of Kitui appealed a High Court ruling by P. Nyamweya, J (as she then was) delivered on 23rd July 2018, which upheld a preliminary objection and struck out the County Government's application for leave to apply for judicial review by way of certiorari to quash an arbitral award made in favour of Power Pump Technical Company Limited. The dispute arose from a 2008 contract for construction of a slaughterhouse; the arbitrator's award of 8th December 2017 (amended 16th January 2018) was challenged unsuccessfully in the High Court's Commercial Division, whose set-aside application was struck out on 5th June 2018. The County Government then sought leave for judicial review in the Judicial Review Division. The Court of Appeal framed a single issue: whether the Judge erred in upholding the preliminary objection and striking out the application as an abuse of process. Applying the established limits on interfering with discretionary decisions, the Court affirmed that a party who has exhausted the statutory set-aside procedure under the Arbitration Act cannot reopen the award through judicial review; such an attempt is a collateral attack on a decision of a concurrent court, is barred by estoppel and res judicata founded on the principle of finality, and amounts to a second bite at the cherry. The Court rejected the complaint that res judicata and estoppel had not been pleaded, noting the preliminary objection expressly pleaded estoppel, forum shopping and affront to public policy, and that the High Court's inherent power under section 3A of the Civil Procedure Act to prevent abuse of process is preserved. The appeal was dismissed with costs to the 2nd respondent.

Questions the Court framed

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

  1. 1.Whether the learned Judge erred in upholding the preliminary objection by the 2nd respondent and in striking out the appellant's application for leave to apply for judicial review on grounds that the same was an abuse of the process of the court

Key legal issues

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01

Whether the High Court properly struck out the judicial review application as an abuse of process

Holding

Yes. The application for leave to seek certiorari would have reopened the arbitral award for challenge, which had been denied by a court of concurrent jurisdiction, amounting to a collateral attack and abuse of process; the appellant could not, having exhausted the Arbitration Act procedure, seek a second bite at the cherry via judicial review.

Reasoning

The dispute was referred to arbitration under the parties' contract; the award was made and amended; the appellant's set-aside application in the Commercial Division was struck out; it then sought leave for judicial review to quash the same award. The Court of Appeal, applying the limited grounds for interfering with discretionary decisions, found no misdirection in law or fact and no plainly wrong decision. Estoppel and res judicata share the underlying principle of finality and bar relitigation of issues.

p. 3
02

Whether the Judge erred in considering res judicata and estoppel which, it was argued, were not pleaded in the preliminary objection

Holding

No. The preliminary objection expressly pleaded that the application was an affront to public policy, an attempt to forum shop, and that the appellant was estopped and precluded; abuse of process was therefore properly before the court.

Reasoning

The 2nd respondent's preliminary objection included the ground that the appellant was 'estopped, debarred and precluded' from raising objections not raised under the Arbitration Act, and that the application was a forum-shopping affront to public policy. The issue of abuse of court process was thus squarely raised. Further, the High Court's inherent jurisdiction under section 3A of the Civil Procedure Act to prevent abuse of process is preserved.

p. 4

Legal principles established

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  • The Court of Appeal will not interfere with a discretionary decision unless the judge misdirected himself in law, misapprehended the facts, took into account irrelevant considerations, failed to take account of relevant considerations, or the decision is plainly wrong
  • A party who has failed in a bid to set aside an arbitral award under the statutory procedure cannot reopen the award by way of judicial review; such an attempt is a collateral attack, an abuse of process and barred by estoppel and res judicata
  • The High Court's inherent power under section 3A of the Civil Procedure Act to make orders necessary for the ends of justice or to prevent abuse of the process of court is preserved

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal are awarded to the 2nd respondent

The bench

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

majority
majority
majority
On appeal from
High Court of Kenya at Nairobi
Misc Civil Application No. 254 of 2018
Jurisdiction invoked
First appeal to the Court of Appeal against a High Court ruling (not stated by specific provision in the judgment)

Relief refused

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Leave to apply for judicial review (certiorari) to quash the arbitral award

The application would constitute a collateral attack on the High Court's earlier decision striking out the set-aside application, and was an abuse of the process of the court

p. 3

Costs

The appeal is dismissed with costs to the 2nd respondent

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.

In conclusion, the appeal fails and is hereby dismissed with costs to the 2nd respondent.
p. 4Final orders / disposition
the appellant could not, after exhausting the statutory procedure set out in the Arbitration Act, hope to get a second bite at the cherry by proceeding by way of judicial review
p. 3Judicial review unavailable to reopen an arbitral award after set-aside procedure exhausted
an application for leave to commence judicial review proceedings of the arbitral award will have the same effect of reopening the said award for challenge, which has been expressly denied in a decision by a court of concurrent jurisdiction, and will thus amount to collateral attack of the said decision.
p. 3Collateral attack on decision of concurrent jurisdiction
That the doctrine of res judicata is based on the principle of finality which is a matter of public policy.
p. 3Res judicata and finality
The Court of Appeal is only entitled to interfere if one or more of the following matters are established: first, that the Judge misdirected himself in law; secondly, that he misapprehended the facts
p. 3Interference with exercise of judicial discretion
Under section 3A of the Civil Procedure Act the High Court's inherent power to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of court is preserved.
p. 4Inherent power to prevent abuse of process

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "County Government of Kitui v Torgbor & another (Civil Appeal 176 of 2020) [2026] KECA 121 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/121/eng@2026-01-30

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.