Cape Holdings Limited (Under Administration) v Synergy Industrial Credit Limited (Civil Appeal (Application) 81 of 2016) [2023] KECA 1497 (KLR) (8 December 2023) (Ruling)

Facts

The applicant, Cape Holdings Limited (Under Administration), applied to the High Court to set aside an arbitral award made by an arbitral tribunal in favor of the respondent, Synergy Industrial Credit Limited. The High Court set aside the award, and the respondent appealed to the Court of Appeal, which struck out the appeal due to lack of a right of appeal under section 35 of the Arbitration Act. The matter was then heard by the Supreme Court, which held that it had residual jurisdiction to entertain the appeal for the sake of correcting palpable injustice.

Issues

1. Whether the High Court had jurisdiction to set aside the arbitral award
2. Whether the Supreme Court had residual jurisdiction to entertain the appeal

Reasoning

The Court of Appeal reasoned that while not every decision of the High Court was appealable under section 35 of the Arbitration Act, in exceptional and limited circumstances, the Supreme Court could exercise residual jurisdiction to correct palpable injustice.

Outcome

The appeal was allowed, and the judgment of the High Court was set aside.

Authorities cited