The County Government of Kitui (County Government) entered into a construction contract with Power Pump Technical Company Limited. Following a dispute, the matter was referred to arbitration, and the sole arbitrator rendered a final award in favour of the contractor. Dissatisfied with the outcome, the County Government first moved the High Court (Commercial Division) seeking to set aside the award, which application was struck out.

The County Government then initiated fresh proceedings, by way of an application, before the High Court (Judicial Review Division), seeking leave to commence judicial review proceedings to quash the award on grounds that the arbitrator had acted arbitrarily, irrationally, capriciously and in excess of jurisdiction.

The High Court rejected that approach, striking out the judicial review application as an abuse of the court process. The County Government consequently proceeded to appeal the decision to the COA.

The central issue before the COA

The core question before the COA was whether a party that has unsuccessfully challenged an arbitral award under the Arbitration Act may subsequently invoke judicial review to attack the same award.

In essence, the court was required to determine whether judicial review could operate as a fallback mechanism where the statutory route under section 35 had already been pursued and failed.

Arbitration as a self-contained statutory regime

In dismissing the appeal, the COA delivered a firm restatement of Kenya’s pro-arbitration jurisprudence. The court accepted that while the High Court retains limited supervisory jurisdiction in exceptional circumstances, the Arbitration Act establishes a distinct and self-contained statutory regime governing arbitral proceedings and the challenge of awards.

Where a party has invoked that regime, particularly section 35, which sets out the exclusive grounds for setting aside, and failed, it cannot repackage the same grievance under the rubric of judicial review. Allowing such an approach would undermine the carefully structured statutory framework governing arbitral finality.

Abuse of process

The court observed that permitting judicial review in these circumstances would have the practical effect of reopening an arbitral award whose challenge had already been declined by a court of concurrent jurisdiction. Such an approach amounts to a collateral attack and constitutes an abuse of process.

The doctrine of finality, which underpins both arbitration law and the broader judicial system, would be compromised if litigants were permitted successive attempts in different divisions of the High Court seeking to achieve the same objective. The COA was clear that the internal administrative structure of the High Court cannot be used as a vehicle for forum shopping.

Finality, estoppel and public policy

The appellant argued that its earlier application had been struck out on procedural grounds and not determined on the merits and therefore could not ground doctrines such as res judicata or estoppel. The court was, however, unpersuaded. It held that the decisive question was whether the subsequent proceedings were, in substance, an attempt to relitigate or reopen the same dispute. The court was of the view that the doctrine of res judicata is based on the principle of finality, which is a matter of public policy, and the doctrine prevents multiplicity of suits and ensures that litigation comes to an end. Therefore, a party is not entitled to a “second bite at the cherry” simply by reformulating its cause of action.

The court further noted that abuse of process had been properly raised and, in any event, the High Court retains inherent jurisdiction under section 3A of the Civil Procedure Act, Cap. 21 to prevent misuse of its processes.

Practical implications

The decision reinforces the strict nature of the timelines and grounds prescribed under section 35 of the Arbitration Act. Failure to comply, whether substantive or procedural, may be determinative. Courts will not permit judicial review to function as a corrective mechanism for missed statutory opportunities.

The decision also sends a clear signal that strategic re-litigation across different judicial divisions will not be tolerated. This underscores the importance of early, precise case assessment when considering whether to challenge an arbitral award.

By refusing to entertain collateral challenges disguised as judicial review, the Court of Appeal has reinforced party autonomy, procedural certainty and the finality of arbitral awards.

For commercial actors, particularly in infrastructure and public procurement contexts, this predictability is essential. The integrity of arbitration depends on finality, and the court has once again affirmed that principle in unequivocal terms.