Kenya Electricity Transmission Co. Ltd (KETRACO) v Instalanciones Inabensa S.A
The bottom line
#Supreme Court dismisses KAA's bid to stop arbitration payment, finding no constitutional issue raised.
What this practically means
#Kenya Airports Authority tried to stop a court order to pay Albeinsa Holdings Inc. Shillings from an arbitration case. They asked the Supreme Court to freeze the payment pending appeal. The Court said no because KAA never raised a constitutional issue in the lower courts—only commercial arguments. A mere mention of the Constitution is not enough for Supreme Court jurisdiction. The Court also found no risk that the appeal would be pointless without a freeze, and no public interest in delaying the payment to a private company.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appeal is arguable and not frivolous
- 2.Whether the appeal would be rendered nugatory if conservatory orders are not granted
- 3.Whether it is in the public interest to grant the conservatory orders sought
Key legal issues
#Whether the Supreme Court has jurisdiction to entertain an appeal from the Court of Appeal's discretionary decision on leave to appeal under Section 35 of the Arbitration Act.
The Court held that the appeal was not arguable because no constitutional issue had been raised at the High Court or Court of Appeal; the dispute was purely commercial and the mere reference to constitutional provisions did not clothe the Court with jurisdiction.
The Court noted that the applicant did not have an automatic right of appeal to the Court of Appeal from a High Court decision under Section 35 of the Arbitration Act, and the Court of Appeal's decision on leave was discretionary. The Supreme Court can only interfere with such discretion if it was based on a whim, was prejudicial or capricious, or conflicted with the Constitution. Here, the applicant failed to show that any constitutional question was in issue at the lower courts, and the mere invocation of constitutional articles alongside statutory provisions was insufficient to establish jurisdiction under Article 163(4)(a).
Whether the conditions for grant of conservatory orders pending appeal were satisfied.
The Court held that none of the three conditions for grant of conservatory orders were met: the appeal was not arguable, it would not be rendered nugatory, and it was not in the public interest to grant the orders.
The Court applied the three-part test from Gatirau Peter Munya. On arguability, the Court found that the appeal raised no constitutional issue and was therefore not arguable. On the nugatory aspect, the Court was not convinced that the appeal would be rendered nugatory, noting that this was a money decree and the award could be reversed. On public interest, the Court found that the dispute was purely commercial and not one involving public funds or broad public concern, despite the applicant being a public institution.
Legal principles established
#- To appeal to the Supreme Court under Article 163(4)(a), the constitutional issue must have been raised at both the High Court and Court of Appeal.
- Simply citing Article 163(4)(a) does not give the Supreme Court jurisdiction if no real constitutional question was argued below.
- A party seeking a conservatory order must show real danger of prejudice from a constitutional violation or threatened violation.
- Conservatory orders require three conditions: an arguable appeal, risk of the appeal being rendered nugatory, and public interest.
- The Supreme Court will not interfere with a Court of Appeal's discretionary decision unless it was based on whim or was capricious.
- A dispute purely commercial, even involving a public entity, does not raise constitutional issues just because of the parties involved.
Court orders
#- 1.The Notice of Motion dated 6th May, 2022 is hereby dismissed.
- 2.Costs are awarded to the Respondent.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
Relief refused
#Conservatory order maintaining status quo pending appeal
The three conditions precedent for the grant of a conservatory relief have not been met; the appeal is not arguable, not likely to be rendered nugatory, and not in the public interest.
Costs
Costs are 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.
the mere citing of Article 163(4)(a) and pleading that a question of application and interpretation of the Constitution is involved in an appeal per se would not be sufficient to clothe this Court with jurisdiction to entertain the appeal
for an appeal to lie to the Supreme Court from the Court of Appeal under Article 163(4)(a), the constitutional issue must have first been in issue at both the High Court and then the Court of Appeal for determination
a party seeking the relief must demonstrate that, unless the Court grants the order, there will be real danger of that party suffering prejudice as a result of the violation or threatened violation of the party's constitutional rights
Key timeline
#Practical implications
#Raise constitutional issues early
If you plan to take a commercial dispute to the Supreme Court, ensure a genuine constitutional question is raised and determined at both the High Court and Court of Appeal. Simply citing Article 163(4)(a) in pleadings will not suffice. Draft your pleadings with explicit constitutional arguments from the start, not as an afterthought.
Supreme Court not for commercial appeals
Your business dispute, even against a government agency like KAA, is unlikely to reach the Supreme Court unless it involves a real constitutional question. If you win an arbitration award and the losing party tries to delay payment by appealing to the Supreme Court, you can argue this case to show the court has no jurisdiction over purely commercial matters.
Conservatory orders require real risk
If you want the Supreme Court to freeze an order against you, you must show three things: your appeal has a genuine chance of success, the appeal would be pointless without the freeze, and the public interest supports the freeze. Vague claims of financial trouble from the other side are not enough.
Frequently asked questions
#What does the Supreme Court decision mean for Kenya Airports Authority and Albeinsa Holdings in Kenya?+
KAA must now pay Albeinsa the arbitration award amount, plus costs of this application. The Supreme Court refused to freeze the payment, so the High Court decree stands and is enforceable.
Can I appeal a commercial dispute to the Supreme Court in Kenya?+
Not automatically. You can only appeal to the Supreme Court under Article 163(4)(a) if a genuine constitutional issue was raised and decided at both the High Court and Court of Appeal. A purely commercial dispute, even involving a public body, is not enough.
What must I prove to get a conservatory order from the Supreme Court in Kenya?+
You must satisfy three conditions: your appeal is arguable (not frivolous), the appeal would be rendered nugatory without the order, and granting the order is in the public interest. The Supreme Court will not grant a freeze just because you asked for it.
Does mentioning the Constitution in my appeal give the Supreme Court jurisdiction in Kenya?+
No. The Supreme Court has held that simply citing Article 163(4)(a) of the Constitution or claiming a constitutional issue exists is not enough. The constitutional question must have been actually raised and determined by the lower courts.
Later judgments citing this (4)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Lakeview Panorama Ltd v Kenya Electricity Transmission Company Limited (KETRACO) (Environment and Land Miscellaneous Case E002 of 2026) (Environment and Land) [2026] KEELC 2680 (KLR)[2026] KEELC 2680 (KLR)7 May 2026applied
- Mbaazi Avenue Residents’ Association & another v Metricon Home Nairobi Company Limited & 2 others[2026] KESC 30 (KLR)31 Mar 2026
- Republic v Kenya Forest Service & 2 others; National Land Commission (Interested Party); Amusibwa & 6 others (Ex parte Applicants) (Suing on Behalf of the Ngerek Community) (Judicial Review E001 of 2025) [2026] KEELC 85 (KLR)[2026] KEELC 85 (KLR)20 Jan 2026
- Heineken East Africa Import Company Limited & another v Heineken International BV & 2 others[2024] KESC 59 (KLR)18 Oct 2024
Cite this brief
#Cite this brief
Caselaw, "Kenya Electricity Transmission Co. Ltd (KETRACO) v Instalanciones Inabensa S.A", Case Analysis (2022). Petition 17(E024) of 2021. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2022/64/eng@2022-10-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.