Harabe v Ahmed & another (Civil Application E678 of 2025) [2026] KECA 1134 (KLR)
The bottom line
#Kenya's Court of Appeal refused to halt enforcement of an arbitral award because the appellant never obtained the leave the Arbitration Act requires before going to court.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant has satisfied the twin limbs of Rule 5(2)(b) - an arguable intended appeal and substantial loss/nugatory effect - so as to obtain a stay of execution of the High Court ruling adopting an arbitral award
- 2.Whether the Rule 5(2)(b) jurisdiction was properly invoked where the intended appeal arises from arbitral proceedings governed by a self-contained statutory regime requiring prior leave for appellate intervention
Key legal issues
#Whether the Court's Rule 5(2)(b) jurisdiction can be invoked where the intended appeal stems from a recognition and enforcement ruling under sections 35 and 36 of the Arbitration Act without prior leave
The motion is incompetent because the mandatory statutory framework for challenging arbitral awards and obtaining leave for appellate intervention was not complied with.
The Court held that although Rule 5(2)(b) confers original, special and discretionary jurisdiction independent of the appeal, it is only properly invoked where there is a competent intended appeal anchored in a legally cognisable framework. The Arbitration Act, based on the UNCITRAL Model Law, severely restricts the court's role; intervention requires prior party consent and leave. The applicant admitted no leave was sought in the arbitral proceedings, so the Rule 5(2)(b) jurisdiction was not properly invoked and the motion was incompetent.
Legal principles established
#- Rule 5(2)(b) jurisdiction is properly invoked only where there is a competent intended appeal and the motion is grounded within a legally cognisable appellate framework.
- Where the substratum of an intended appeal arises from arbitral proceedings governed by the Arbitration Act's self-contained regime, appellate intervention requires prior leave or statutory recourse; without it, a Rule 5(2)(b) motion is incompetent.
- Court intervention against arbitral proceedings or awards is valid only with the prior consent of the parties, and any consent is confined to questions of law; appeals under section 39 of the Arbitration Act require leave.
Court orders
#- 1.The motion dated 17th November 2025 is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Not stated in the judgment
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act; Rules 1(2), 4, 5(2)(b) and 44 of the Court of Appeal Rules, 2022; Article 159 of the Constitution of Kenya, 2010
Relief refused
#Stay of execution of the High Court ruling of 14th November 2025 pending the hearing and determination of the intended appeal
The Court held that its Rule 5(2)(b) jurisdiction had not been properly invoked because the intended appeal arises from arbitral proceedings not shown to have been challenged within the mandatory statutory framework, and no leave for appellate intervention had been sought or obtained, rendering the motion incompetent.
Costs
The motion dated 17th November 2025 is dismissed with costs to the respondents.
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.
the Court finds that its Rule 5(2)(b) jurisdiction has not been properly invoked in circumstances where the substratum of the intended appeal arises from arbitral proceedings not shown to have been challenged within the mandatory statutory framework, thereby rendering the motion incompetent.
The motion dated 17th November 2025 is herein dismissed with costs.
Although Rule 5(2) (b) confers upon this Court original, special and discretionary jurisdiction independent of the appeal, as stated in Stanley Kang’ethe Kinyanjui v Tony Ketter & 5 others [2013] eKLR, that jurisdiction is nonetheless properly invoked only where there is a competent intended appeal and the motion is grounded within a legally cognisable appellate framework.
It is admitted, that no leave was sought or obtained in relation to the arbitral proceedings before the High Court, where such leave or statutory recourse is a precondition to appellate intervention in arbitration-related disputes.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Harabe v Ahmed & another (Civil Application E678 of 2025) [2026] KECA 1134 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1134/eng@2026-06-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.