https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1134

Harabe v Ahmed & another (Civil Application E678 of 2025) [2026] KECA 1134 (KLR) (12 June 2026) (Ruling) Neutral citation: [2026] KECA 1134 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Application E678 of 2025 W Karanja, AO Muchelule & WK Korir, JJA June 12, 2026 Between Abdullahi Abdi Harabe Applicant and Mohammed Mohamud Ahmed 1st Respondent Al-Reef Flour Mills LLC 2nd Respondent (Being an application for stay pf execution against the ruling and order of the High Court of Kenya t Nairobi (H. Hamisi, J.) dated 14th November 2025 in COMM Misc. Appl. No. E476 of 2024) Ruling 1.By way of a motion dated 17th November 2025, brought pursuant to 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, and Article 159 of the Constitution of Kenya, 2010, Abdullahi Abdi Hirabe (the Applicant herein) seeks an order staying execution of the ruling delivered on 14th November 2025 by the Superior Court (Namisi, J.) (hereafter the superior court), pending the hearing and determination of the intended appeal. 2.It was urged that the intended appeal raises weighty constitutional and statutory questions, inter alia: whether an alleged award arising from an informal adjudication process presided over by persons who are not certified arbitrators is capable of recognition, adoption and enforcement by the High Court of Kenya; whether the execution of separate arbitration consent forms by the parties, agreeing to an adjudication process, constitutes a valid arbitration agreement within the meaning of section 4 of the Arbitration Act; whether an adjudication process conducted outside the framework of the Arbitration Act and the Arbitration Rules is capable of recognition, adoption and enforcement by the High Court under section 36 of the Act; whether uncertainty arises where an alleged arbitral award does not specify a definitive monetary sum but instead relies on party-calculated figures subsequently adopted by the court without interrogation; and whether the High Court has jurisdiction over adjudication processes that do not comply with the Arbitration Act and the Arbitration Rules. 3.On the nugatory aspect, it was argued that the applicant stands to suffer irreparable loss if the subject matter of the suit is not preserved, as the 1st respondent is likely to proceed with execution of the ruling and consequential orders. It was contended that failure to comply would expose the applicant to arrest and deprivation of liberty. The applicant further expressed apprehension that the 1st respondent is already actively pursuing execution by demanding settlement of the alleged award. It was submitted that execution of the ruling would unjustly enrich the 1st respondent through enforcement of a purported award based on allegedly fictitious and unverified monetary calculations, which were adopted by the superior court without proper scrutiny. It was contended that unless the orders sought are granted, the intended appeal will be rendered nugatory, as the applicant will either be compelled to satisfy a highly disputed award or risk committal to civil jail. 4.In the supporting affidavit, it was deponed that the applicant, being aggrieved by the impugned ruling, filed a notice of appeal dated 14th November 2025 on 16th November 2025. It was further averred that the respondents had, before the superior court, vide summons dated 30th May 2024, sought recognition, adoption and enforcement of an alleged arbitral award pursuant to section 36 of the Arbitration Act. The applicant opposed the said summons on the grounds of opposition and a preliminary objection challenging, inter alia, the jurisdiction of the superior court to entertain the application. In its ruling delivered on 14th November 2025, the superior court held that the preliminary objection lacked merit, affirmed its jurisdiction to hear and determine the summons, and proceeded to adopt the alleged arbitral award. The applicant, being dissatisfied with the ruling, now seeks a stay of execution on the basis that the decision was legally erroneous. The applicant reiterated the grounds on the arguability of the appeal and the nugatory effect. 5.The motion is opposed. The affidavit in response is sworn by Kenneth Odero, counsel for the respondents herein. It was contended that the applicant is, in effect, arguing the merits of the intended appeal within the present application. It was further averred that the applicant has failed to demonstrate any error of law or fact in the impugned ruling that would justify the grant of an order of stay of execution. The allegation of imminent execution was denied, and it was argued that no sufficient evidence had been placed before the Court to show any real or imminent threat of execution. It was further submitted that the applicant’s claim of irreparable loss was speculative and unsupported by evidence. The respondent maintained that the intended appeal is not arguable and that the applicant has also failed to offer any security for the due performance of the decree. Accordingly, it was argued that the applicant has not satisfied either of the two mandatory limbs for the grant of an order of stay pending appeal. 6.In reply, the applicant averred that counsel for the respondents, not being a party to the proceedings, ought not to have sworn an affidavit on matters that are contentious in nature. It was further stated that the 1st respondent is not a resident of Kenya. The applicant maintained that the intended appeal is arguable and has strong prospects of success. 7.Before the superior court, vide summons dated 30th May 2024, the respondents sought leave to enforce a final arbitral award dated 18th August 2021, allegedly issued and published by Sheikh Abdiqadir Mohamed Osman (Boobe), Abdishakur Mohamud Mohamed, and Ibrahim Yusuf Abdinoor (Advocate), described as Certified Islamic Arbitrators, on 18th August 2021. The application was supported on the basis that the parties, being persons of the Islamic faith, had mutually agreed to resolve their dispute through a sharia-based arbitration process. It was contended that the parties appointed the said Islamic arbitrators and executed an arbitration consent form. Upon conclusion of the process, a final award was said to have been rendered in favour of the respondents on 14th July 2021 in the sum of USD 84,736.145. It was further stated that the statutory period of 30 days had lapsed without the applicant taking steps to set aside the award, and, therefore, the respondents sought its adoption and enforcement. 8.In opposing the summons, the applicant filed a notice of preliminary objection on, inter alia, the grounds that the superior court lacked jurisdiction to hear and determine the application as there were no arbitration proceedings capable of yielding an enforceable award; that the Arbitration Act and Arbitration Rules did not apply to the informal dispute resolution mechanism adopted by the parties; that the summons offended section 36(3)(b) of the Arbitration Act as there was no valid arbitration agreement between the parties; and that the application was incurably defective, incompetent and bad in law. In the grounds of opposition, the applicant further contended that the initial contract and relationship between the parties was through a verbal agreement hence there was no arbitration agreement capable of commencing arbitral proceedings in the first place, amongst other grounds. 9.In its ruling, the superior court held that a valid arbitration agreement existed between the parties within the meaning of section 4 of the Arbitration Act. This finding was based on the signed “Arbitration Application Forms,” which expressly recorded the parties’ consent to submit their dispute to named arbitrators and to be bound by their decision. The superior court found that the use of clear arbitration terminology “arbitrate,” “arbitrators,” and “binding decision” demonstrated an intention to create a binding arbitral process satisfying the statutory requirement that an arbitration agreement be in writing and signed. The superior court further held that the parties’ description of the process as informal mediation or its religious/sharia character did not alter its legal nature, as party autonomy under section 29 of the Arbitration Act and Article 159 of the Constitution permits parties to choose applicable substantive norms within a valid arbitration framework. 10.Having so found, the superior court held that the dispute resolution mechanism fell within the Arbitration Act and that it therefore had jurisdiction under section 36 to recognize and enforce the resultant award. The preliminary objection challenging jurisdiction and the existence of an arbitration agreement was accordingly dismissed. 11.On enforcement, the superior court emphasized the statutory policy favouring finality of arbitral awards and minimal judicial intervention under sections 10 and 32A of the Arbitration Act. It held that the applicant, having failed to challenge the award within the time prescribed under section 35, could not later rely on the same grounds such as invalidity of the arbitration agreement or procedural irregularities, to resist enforcement under section 37, as this would undermine the finality regime of arbitration law. 12.On the question of certainty, the superior court found that although the award did not state a single lump-sum figure, it contained sufficient findings, schedules, and directives to allow the quantum due to be ascertained through straightforward calculation without further adjudication. The award was, therefore, not void for uncertainty and was capable of enforcement. However, the superior court held that enforcement must be strictly confined to the award as rendered by the arbitral tribunal. It, therefore, disallowed additional sums introduced by the respondents, including VAT and legal fees, which were not part of the arbitral award. In conclusion, the preliminary objection was dismissed, the superior court allowed the chamber summons, and granted recognition and enforcement of the arbitral award dated 18th August 2021 as an order of the court, with costs awarded to the respondents. 13.When the motion came up for hearing on a virtual platform, learned counsel Mr. Abdiaziz appeared for the applicant, while learned counsel Mr. Kenneth Kagwako, was present for the respondents. The motion was disposed of by way of written submissions with brief highlights. 14.The applicant, through Mr. Abdiaziz, confirmed that the application before the Court was one for stay of execution under Rule 5(2)(b) of the Court of Appeal Rules. He contended that the dispute did not arise from a valid arbitration process under the Arbitration Act, but from an informal adjudication arrangement framed as sharia-based dispute resolution. Counsel argued that there was no valid arbitration agreement within the meaning of section 4 of the Arbitration Act, as there was no formal arbitration clause or properly constituted arbitration agreement between the parties. 15.He further submitted that the consent forms relied upon could not, in law, amount to a valid arbitration agreement, and that the High Court, therefore, lacked jurisdiction to recognize and adopt the alleged award under sections 35 and 36 of the Arbitration Act. In addition, counsel argued that the respondents’ application before the High Court was defective as the dispute resolution process did not meet the statutory requirements of arbitration. 16.On the merits of the intended appeal, counsel maintained that the process was merely an informal adjudication involving selected individuals and could not be elevated into arbitration under Kenyan law. He also contended that the purported award was uncertain, as it did not specify a clear monetary award but instead referred to a general 50–50 sharing arrangement without a definitive quantified decree. 17.On the nugatory aspect, the applicant submitted that unless a stay was granted, the respondents would proceed with execution, exposing him to arrest and possible committal to civil jail. He argued that the enforcement was based on a defective and legally unsustainable process, and that substantial injustice would arise if execution proceeded before the appeal was heard. He also urged the Court to consider the balance of hardship in favour of preserving the subject matter pending determination of the appeal. 18.The respondents, through Mr. Kagwako, opposed the application, submitting that it disclosed no arguable appeal and raised no substantial question of law. They contended that the parties had voluntarily executed written consent forms agreeing to arbitration before named arbitrators and agreeing to be bound by their decision, thereby satisfying the requirements of section 4 of the Arbitration Act. 19.Counsel further submitted that the High Court properly exercised jurisdiction under section 36 of the Act in recognizing and adopting the award, and that any challenge to the validity of the arbitration agreement or procedure ought to have been raised through an application to set aside the award under section 35 within the prescribed time, which the applicant failed to do. He added that the applicant was effectively attempting to reopen issues already conclusively determined by the arbitral process and the High Court, contrary to the principle of finality in arbitration. 20.On jurisdictional aspects, the respondents also emphasized that the statutory framework of the Arbitration Act, including sections 35, 36, and 37, governed any challenge to the award, and that the applicant could not circumvent that framework through a stay application. 21.On the nugatory aspect, it was argued that the applicant had not demonstrated substantial loss, and that allegations such as non-residence of the respondent were unproven. It was further submitted that the applicant had not offered any security for the decretal sum, which was presented as a factor demonstrating seriousness and good faith in seeking discretionary relief. Counsel urged the Court to find that the application was an abuse of process and to dismiss it. 22.In reply, the applicant objected to counsel swearing a replying affidavit on contentious matters and reiterated that the dispute did not arise from a valid arbitration agreement. He maintained that the respondents would suffer no prejudice if a stay was granted, and urged the Court to consider the balance of hardship, contending that greater prejudice would be suffered if execution proceeded before determination of the intended appeal. 23.The motion before the Court is one for stay of execution under Rule 5(2)(b) of the Court of Appeal Rules, 2022 arising from a ruling of the High Court adopting an arbitral award. 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. The Court at this stage is not determining the merits of the appeal, but is entitled to consider whether the intended appeal is properly anchored in law, particularly where the dispute arises from arbitral proceedings governed by a self-contained statutory regime. 24.In the present case, the intended challenge is directed at a ruling arising from recognition and enforcement of an arbitral award under sections 36 and 35 of the Arbitration Act. 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. 25.The Arbitration Act, No. 4 of 1995 is based on a Model Law on international commercial arbitration adopted in 1985 by the United Nations Commission on International Law (UNCITRAL). One of the principles underlying the Model Law and in turn the Arbitration Act is the severe restriction on the role of the court in the arbitral process. That principle finds expression in section 10 of the Act. Section 35 of the Arbitration Act is itself underpinned by that principle. Our courts have, since the coming into force of that statute, observed and given effect to that principle. In Anne Mumbi Hinga v Victoria Njoki Gathara [2009] eKLR for instance, the Court, in reference to the right of appeal against an arbitral award under section 39 of the Arbitration Act stated:“It is clear from the above provisions, that any intervention by the court against the arbitral proceedings or the award can only be valid with the prior consent of the parties to the arbitration pursuant to Section 39 (2) of the Arbitration Act 1995. In the matter before us there was no such advance consent by the parties. Even where such consent is in existence the consent can only be on questions of law and nothing else. Again, an appeal to this Court can only be on matters set out in Section 39 (2) with leave of the High Court or with leave of this Court. All these requirements have not been complied with and therefore the appeal is improperly before us and is incompetent.” 26.In light of this statutory limitation, 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. 27.The motion dated 17th November 2025 is herein dismissed with costs. DATED AND DELIVERED AT NAIROBI THIS 12TH DAY OF JUNE 2026.W. KARANJA........................................JUDGE OF APPEALA.O. MUCHELULE........................................JUDGE OF APPEALW. KORIR........................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR.