https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1324

Centurion Engineers & Builders Ltd v Kenya Bureau of Standards (Civil Appeal (Application) E398 of 2021) [2026] KECA 1324 (KLR) (10 July 2026) (Ruling) Neutral citation: [2026] KECA 1324 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal (Application) E398 of 2021 GV Odunga, HI Ong'udi & B Ongaya, JJA July 10, 2026 Between Centurion Engineers & Builders Limited Appellant and Kenya Bureau of Standards Respondent (Being an application for certification and leave to appeal to the Supreme Court from the Judgment of the Court of Appeal at Nairobi (Omondi, Laibuta & Ngenye JJA.) delivered on 27th October 2023 in Civil Appeal No. E398 of 2021) Ruling 1.In its judgement delivered on 27th October 2023, this Court (Omondi, Laibuta & Ngenye, JJA) allowed this appeal which was lodged by Centurion Engineers & Builders Limited (herein referred to as the respondent) against Kenya Bureau of Standards (herein referred to as the applicant). Dissatisfied with the said decision, the applicant, on 9th November 2023 filed a Notice of Appeal intimating its desire to appeal the decision to the Supreme Court. In order to do so, the applicant has moved this Court vide a Notice of Motion dated 7th November 2023, expressed to be brought under Article 163(4)(b) of the Constitution, rule 33(1) of the Supreme Court Rules and rue 42 of the Court of Appeal Rules, seeking an order that this Court certifies its intended appeal and the proposed grounds of appeal as raising matters of general public importance which transcend the circumstances of this case and entail a matter of significant public interest and to proceed to grant leave to the applicant to appeal the judgment to the Supreme Court. 2.A brief background of this dispute is necessary to place the matter in perspective. The applicant, desirous of refurbishing its Biochemical Laboratories (Labs), invited bids for building works under Tender No. KEBS/T054. The respondent which was one of the bidders emerged as the successful tenderer in the main tender although the refurbishment constituted other sub contracts with independent agreements. Consequently, the main contract dated 27th April 2008 for the sum of Kshs.79,910,440/- was signed between the applicant and the respondent. Its validity period was indicated to be for a period of 24 weeks from the date of signing until 3rd October 2009. 3.The works commenced but at some point, a variation to the works was made and a supplementary contract was signed incorporating the variation to provide for extra work. A dispute however, arose as to the effect of the supplementary agreement, necessitating reference to arbitration. In that dispute the applicant took the view that the supplementary agreement had two components, one for extra works and the other constituting variation of the original contract. On the other hand, the respondent was of the view that any necessary variations, would, upon completion of the project, be addressed accordingly. Be as it may, the respondent carried out the works, including the variations and according to it, completed the project in July 2010. 4.The applicant however declined to pay for the work done, resulting in the respondent filing a suit in the High Court. On an application dated 7th September 2012 by the applicant, the suit was stayed pending arbitration as provided for in the parties’ agreement. At the arbitration, the applicant took the view that the claim presented for determination by the Arbitrator was different and outside the scope of the dispute referred to him by the court since in its view, the statement of claim filed before the arbitrator was for a much higher sum than that in the plaint. After the hearing, the Arbitrator made an award dated 28th November 2013. 5.Dissatisfied with the decision, the applicant moved to the High Court to set aside and/or vary the said award and in its ruling of 26th June 2014, the High Court allowed the application and remitted the matter to the arbitrator. At the conclusion of the second referral to arbitration, two applications were made, one dated 9th June 2015 by the applicant, which sought to set aside the arbitral award, and the other dated 10th August 2015 by the respondent which sought to have the arbitral award recognized and adopted as a judgment of the court. With respect to the application dated 9th June 2015 seeking to set aside the award, the learned Judge in the ruling dated 9th December 2016, was of the view: that, in so far as an award upheld a variation which is contrary to statute, the same would be against public policy; that the duty of the court under section 35(2)(b)(ii) of the Arbitration Act was to examine whether an award is in conflict with the public policy of Kenya, which duty cannot be performed without the court scrutinizing the award in the context of any questions of public policy raised; that, while there is deference to the arbitrator’s findings the court should not be bound by the arbitrator’s own finding that his decision was not against public policy since the court must subject the arbitrator’s finding to its own independent evaluation or else awards would never be subject to review under section 35(2)(b)(ii) of the Arbitration Act; that when unlawful variations are made in respect of public contracts, there are two parties in the wrong, the officers of the procuring entity and the contractor; a n d that were it to uphold such a breach on the argument that the contractor would suffer loss, then routine and casual violation of procurement law would be the order of the day. 6.Consequently, the High Court allowed the application dated 9th June 2015 and set aside the arbitral award, citing non- compliance with section 47 of the repealed Act as read with regulation 31 of the Public Procurement and Asset Disposal Regulations, 2006 (the Regulations), in effect, dismissing the application dated 10th August 2015. In his judgment, the learned Judge held that:“Given these set of findings by the Arbitrator…the inescapable finding of the Arbitrator would have been that the quantity variation of works that doubled the original Contract quantity was a bold violation of section 47 of the PPD Act as read with Regulation 31 (c) of the PPDA Regulations. This was because that substantial variation was not subjected to new procurement….such a lenient stance would encourage Contractors to happily collude in the violation of the law, and then turn around to play victim so as to win the sympathy of the court. The Law on Procurement is on the side of the Kenyan Public and it must be strictly enforced.” 7.Aggrieved by the trial court’s decision, the respondent filed the appeal to this Court in which it restricted itself to the issue whether the award was contrary to public policy. 8.In allowing the appeal, this Court stated that:“Consequently, we hold that the issue as raised by the respondent on the contravention of the PPDA is a mere afterthought aimed at avoiding liability to fulfil its contractual obligations. It is not disputed that the appellant indeed carried out and completed the additional works as instructed, and handed over the project to the respondent, who has since taken possession of the premises for its day-to-day business without paying the appellant the contractual sums due. We agree with the appellant that it is indeed entitled to the value for work done under the contract as mutually agreed upon by the parties. We are not persuaded by the respondent’s argument that the Arbitrator’s award was contrary to public policy, as it is on the record that the respondent being a public entity used a private document whilst engaging the appellant to undertake works for it. The respondent cannot be seen to hide under the provisions of the PPDA, yet it was never referred to in the contract between the parties. The respondent being a public body ought to have governed itself as such and not at the last-minute try and turn tables.” 9.The application is supported by an affidavit sworn by Miriam Kahiro, the applicant’s director, legal services on 9th November 2023 in which it is deposed that in this Court’s judgment of 27th October 2023, the Court addressed itself to issues raising matters of general public importance. The said issues were identified as: whether an arbitral tribunal can disregard a provision of the Constitution or statute and proceed to base an award on an illegal and unenforceable interpretation of a contract that varies and/or supplements the procurement contract; whether a variation to a public procurement contract contrary to statutory provisions and Article 227 of the Constitution can be a basis for challenging a valid and enforceable arbitral award; whether a variation to a procurement contract or a supplementary contract can exceed the scope permitted under the Public Procurement and Asset Disposal Act, 2015 (the Act) as read with Public Procurement and Disposal Act, 2005 (the repealed Act); whether an arbitral award that is contrary to the provisions of Article 227 of the Constitution, the Act and the repealed Act can be adopted and enforced as a judgment of the High Court; whether a supplementary contract or variation that exceeds the permissible variations under the Act and the repealed Act must be subjected to a fresh procurement process; whether an arbitral award that is contrary to the Constitution or express statutory provisions of the Act and the repealed Act ought to be set aside as a matter of public policy; to what extent should the courts intervene under section 10 of the Arbitration Act in arbitration proceedings where an arbitrator disregards the constitutional principles and statutory provisions of the Act and the repealed Act; and whether all procurement contracts by a public entity are subject to the provisions of the Act and the repealed Act. 10.The deponent averred, based on legal advice, that the findings and determination of this Court significantly affect all procurement disputes referred to arbitration and an appeal to the Supreme Court will give guiding principles on the scope and extent of public policy to the setting aside of arbitral awards. According to her, the interpretation and finding that a supplementary contract is not governed by the provisions of the Act and the repealed Act unless resolved will have the effect of substituting the constitutional principle on procurement and the protection afforded by the statute in prohibiting uncontrolled variation of public procurement contracts. The adoption of an arbitral award, according to the applicant, that is against public policy and is based on interpretation that a supplemental contract executed under the provisions of section 47 of the repealed Act can exceed the variation allowable under the Act, a finding which will open the floodgates for contracts to illegally exceed the scope of work intended and/or contracted under the guise that payment for such works becomes due and owing despite the failure to tender afresh for the exceeding scope of goods and services variation allowable under the Act. 11.The deponent set out the grounds on which the applicant intends to appeal as errors by the Court: in interpreting and construing the provisions of the supplemental contract as a private contract and/or document not subject to the provisions of the repealed Act; in upholding the arbitral award which was based on the supplemental contract permitting variations exceeding the scope allowable under section 47 of the Act and regulation 31(b) of the Regulations; in interpreting the provisions of the supplemental contract as a private contract contracting for goods and services exceeding fifteen (15%) per cent of the original contract quantity despite the fact that no new procurement had been undertaken by the respondent; in adopting an arbitral award where the sole arbitrator made a finding that there was non-compliance with provisions of the Act and the repealed Act; in holding that the arbitral award was a private contract and was based on private documents despite the fact that the respondent was a public procuring entity subject to the provisions of Article 227 of the Constitution and the repealed Act; in holding that the provisions of the supplementary contract superseded the provisions of section 47 of the repealed Act; and in adopting an arbitral award that is contra the provisions of Article 227 of the Constitution, the Act and the repealed Act. 12.The applicant’s case was that the findings and judgment have brought uncertainty on the interpretation and application of the provisions of the Constitution to public procurements and the disputes arising from the public procurement. According to the applicant, it is necessary for the Supreme Court to intervene in order to protect the principles of public procurement set out in Article 227 of the Constitution as well as the Act from being overridden by the whims of contracting parties to the detriment of the public and public interest. We were therefore urged to certify the matter as one of general public importance. 13.In response, a replying affidavit was sworn by Eng. Samay Singh, a director of the respondent on 22nd January 2024 in which it was deposed: that the application and intended appeal to the Supreme Court are incompetent, ill-advised and a non-starter as the applicant has no right of appeal to the Supreme Court since this Court’s decision, when exercising its limited appellate jurisdiction in arbitration matters, is final and no further avenue of appeal lies to the Supreme Court; that the issues raised by the applicant do not transcend the dispute between the parties herein and do not raise any matters of general public importance; that the dispute relates to a contract entered into way back in 2009 between the applicant and the respondent which contract was freely and voluntarily varied by the applicant itself; that it is untenable that the applicant would be enjoying the very works that it directed the respondent to undertake and at the same time refusing to pay for the same; that contrary to the applicant’s position, the judgement does not in any way affect all procurement disputes referred to arbitration as it was specific to the facts at hand and to the conduct of the applicant in the contractual agreement that gave rise to the dispute; that the judgement did not in any way affect the validity or the applicability of the relevant provisions of the Act but only upheld the long-standing legal principle that it is not the place of the courts to rewrite contracts/agreements freely and voluntarily entered into by the parties; that contrary to the applicant’s position, there is no state of uncertainty that has been created on the interpretation and application of the provisions of the Constitution and those of the Act as the circumstances and particulars upon which this Court rendered its judgment were specific to the parties at hand as the applicant itself authored a private document that it turned around and attempted to escape liability; and that the application is devoid of merit for failing to raise any matters of general public importance, no uncertainty created by the judgment and does not transcend the specific dispute between the parties. 14.We heard the application on 25th February 2026 when learned counsel, Mr Issa Mansur appeared with Mr Mahat Somane and Mr Michael Chege for the applicant while learned counsel, Mr Bryan Khaemba, appeared for the respondent. The applicant relied on the written submissions dated 20th February 2026 and filed by Garane & Somane Advocates while the respondent relied on the submissions dated 11th February 2026 filed by Bryan Khaemba, Kamau & Kamau Advocates. At the plenary hearing, counsel briefly highlighted their respective submissions. 15.On behalf of the applicant it was submitted that the applicant intends to urge before the Supreme Court that the arbitral tribunal failed to consider whether the supplemental contract and the variation of works was subject to the repealed Act and the Constitution and whether the decision of this Court, in adopting the award dated 5th May 2015, is contrary to the public policy of Kenya on procurement. Citing Article 163(4)(b) of the Constitution, and the Supreme Court decision in Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone (2013) eKLR; [2013] KESC 11 (KLR), the applicant submitted that the intended appeal meets the set threshold and that certification should be granted for the reasons that the applicant intends to urge before the Supreme Court that all contracts executed between suppliers/ contractors and public bodies are subject to the Act and therefore cannot be considered a private document, contrary to what this Court held. The applicant intends to urge that public procurement is governed solely by the provisions of Article 227 of the Constitution and the Act and therefore a public entity and a supplier/contractor cannot unilaterally circumvent the provisions of the Constitution and the Act and execute a private contract in view of the fact that public funds will be used in the execution of the contract. In the applicant’s view, this issue transcends the interest of both parties as similar findings have been made by the High Court in Kenya National Highway Authority v Interways Works Ltd [2025] KEHC 15093. To the applicant, unless expressly excluded by statute, all contracts and procurement by public entities are subject to the provisions of the Act. Its view was that an arbitral tribunal considering a dispute involving a contract awarded pursuant to the provisions of the Act ought to satisfy itself, as a pre-requisite, that the dispute subject matter of the reference and any variations and/or claims arising thereof are is in accordance with the provisions of the Act and will urge that a variation to a contract awarded through public procurement which is contrary to statutory provisions and Article 227 of the Constitution on principles of public procurement cannot form the basis of a valid and enforceable arbitral award. 16.Further, it was submitted that this Court failed to consider the scope of public policy as a ground for setting aside an arbitral award, where the variation of a contract was undertaken contrary to the provisions of the Act. While the contract and the variations in the present dispute were subject to the provisions of the repealed Act and Regulation 31 of the Regulations, section 139 of the Act, sets out the conditions and limits under which a contract may be varied. Therefore, it was submitted, it is prudent and important that the Supreme Court renders itself on the question of whether an arbitral award that is contrary to the Constitution or express statutory provisions of the Act ought to be set aside as a matter of public policy. 17.It was contended that the intended appeal will also clarify the apparent conflicting decisions of the High Court. Whereas this Court in its judgment under challenge and the High Court in Kenya National Highway Authority v Interways Works Ltd [2025] KEHC 15093 have held that a procuring entity cannot allege breaches of the Act in an application seeking to set aside an arbitral award on grounds of public policy or in a suit seeking payment for goods/ services, the High Court in Grana Limited v National Social Security Fund [2022] KEHC 61 and Royal Media Services v Independent Electoral & Boundaries Commission & 3 Others [2019] KEHC 8239, held that Article 227 of the Constitution and the Act prevail over any personal loss or benefit in procurement disputes. 18.The applicant, it was disclosed, will contend before the Supreme Court that the impact of the judgment if not set aside will give judicial approval to supplemental contracts permitting variations exceeding the scope allowable under section 139 of the Act, (previously section 47 of the repealed Act) and Regulation 31(b) of the Regulations. Since the High Court found that variations of procurement contracts can be abused to give advantage to a contractor who is already engaged and to discriminate against other potential tenderers, the applicant will seek to have the Supreme Court clarify whether a variation that is contrary to statutory provisions and Article 227 of the Constitution on principles of public procurements can form the basis of a valid and enforceable arbitral award based on what this Court considered a private contract. 19.The other point that the applicant intends to urge before the Supreme Court is that pursuant to the provisions of Article 165(6) of the Constitution and sections 10 and 35 of the Arbitration Act, the High Court has a wider scope of power to interfere in arbitration proceedings related to procurement disputes, where an arbitral tribunal disregards the constitutional principles and statutory provisions of the public procurement and asset disposal. The applicant will urge that the concept of public policy as set out in section 35 (2)(b)(ii) of the Arbitration Act extends to situations where an arbitral award disregards the principles of public procurement and asset disposal set out in Article 227 of the Constitution of Kenya. In the applicant’s view, the intended appeal therefore transcends the interests of the applicant. 20.The respondent, on its part, identified the issues for determination as whether the applicant has a right of appeal to the Supreme Court against the judgement of this Court arising out of arbitration matters and whether the applicant's intended appeal raises matters of general public importance. 21.On the issue whether the applicant has a right of appeal to the Supreme Court against the judgement of this Court arising out of arbitration matters, the respondent cited the case of Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR, highlighting the fact that jurisdiction of a court must be conferred by either the Constitution, statute or both and the same may be limited as well in that regard. In the respondent’s view, the Arbitration Act does not confer a right of appeal to a litigant against the judgement of this Court, in the exercise of its appellate jurisdiction in arbitration matters, to the Supreme Court. In support of this submission, the respondent cited the case of Nyutu Agrovet Limited v Airtel Networks Kenya Limited; Chartered Institute of Arbitrators-Kenya Branch (Interested Party) [2019] eKLR to highlight the position that appellate intervention in arbitration matters is limited and has to be as provided for by the Arbitration Act. In the respondent’s view, in considering whether an application for certification and leave to appeal to the Supreme Court is merited, this Court has to first determine whether a right of appeal exists and whether the applicant is capable of invoking the jurisdiction of the Supreme Court in the first place. If no such right of appeal exists, it was submitted, the application for certification and leave to appeal is incompetent and a non- starter from the onset as it would be seeking to institute an appeal that is neither allowed nor provided for anywhere in law thus rendering the application itself fatally defective and utterly misguided and deserving to be struck out in limine. It was contended that both this Court and the Supreme Court have consistently held that in such proceedings, the judgement of the Court of Appeal is final and no further right of appeal lies to the Supreme Court and as such, the applicant similarly has no right of appeal to the Supreme Court. As such, in as much as the present application seeks leave to institute an incompetent appeal to a court bereft of jurisdiction, the same is a non-starter and ought to be dismissed with costs. To support this submission, the respondent cited Geochem Middle East v Kenya Bureau of Standards [2020] eKLR; [2020] KESC 1 (KLR) and Cape Holdings Limited v Synergy Industrial Credit Limited [2025] KECA 1928 (KLR). 22.On whether the applicant’s intended appeal raises matters of general public importance, it was submitted that the applicant has not met the threshold for certification as such. The respondent cited the case of Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone (supra) where the Supreme Court, whilst laying out the criteria for determination whether a matter is of general public importance, affirmed that the burden lay with the applicant to demonstrate inter alia: that the issue in dispute transcends the circumstances of that particular case; that it raises a substantial point of law with a significant bearing on public interest; that there is a state of uncertainty in the law arising from the impugned decision; and that the elements of general public importance have been specifically set out. 23.In the respondent’s view, the applicant failed to demonstrate that the intended appeal conforms to the abiding governing principles. Contrary to what the respondent alleges, the issues in dispute do not transcend the circumstances of the case but relate to a specific contract for works executed and varied as between the appellant and the respondent alone. This Court, it was submitted, rightly observed that this suit is distinguishable from others similarly touching on section 47 of the Act as the liability to pay was not in contest and the applicant, being a public body, had used a private document and entered into a contract with the respondent but outrightly and without justification, refused to pay having benefited therefrom. 24.As such, it was contended, the judgement of this Court was specific to the actions and conduct of the respondent and not to the applicability and enforcement of section 47 of the Act, hence there is no question of law significant to the public interest that has been raised. Similarly, there is no state of uncertainty created in the law. On the basis of the foregoing, we were urged to dismiss the application with costs. 25.The applicants submitted that the application satisfies the principles set out in Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone (supra): 26.We have considered the submissions made by learned counsel in support of the instant application. This application raises two issues. One is whether an appeal lies to the Supreme Court from this Court on matters arising from arbitration proceedings. The second issue is whether the matters that the applicant intends to raise at the Supreme Court involve matters of general public importance. 27.On the issue of jurisdiction, the Supreme Court in Nyutu Agrovet Ltd v. Airtel Networks Kenya Ltd & 2 Others (supra) held that:“(72)Furthermore, considering that there is no express bar to appeals under Section 35, we are of the opinion that an unfair determination by the High Court should not be absolutely immune from the appellate review. As such, in exceptional circumstances, the Court of Appeal ought to have residual jurisdiction to enquire into such unfairness. However, such jurisdiction should be carefully exercised so as not to open a floodgate of appeals thus undermining the very essence of arbitration. In stating so, we agree with the High Court of Singapore in [AKN & another v ALC & others [201] SGCA 18] that circumscribed appeals may be allowed to address process failures as opposed to the merits of the arbitral award itself…(74)As we have stated above, there has to be exceptional reasons why an appeal should be necessary in a matter arising from arbitration proceedings which by its very nature discourages court intervention.” 28.The Supreme Court then concluded as follows:(77)In concluding on this issue, we agree with the Interested Party to the extent that the only instance that an appeal may lie from the High Court to the Court of Appeal on a determination made under Section 35 is where the High Court, in setting aside an arbitral award, has stepped outside the grounds set out in the said Section and thereby made a decision so grave, so manifestly wrong and which has completely closed the door of justice to either of the parties. This circumscribed and narrow jurisdiction should also be so sparingly exercised that only in the clearest of cases should the Court of Appeal assume jurisdiction.(78)In stating as above, we reiterate that Courts must draw a line between legitimate claims which fall within the ambit of the exceptional circumstances necessitating an appeal and claims where litigants only want a shot at an opportunity which is not deserved and which completely negates the whole essence of arbitration as an expeditious and efficient way of delivering justice.” 29.Subsequently the Supreme Court explained as follows in Geochem Middle East v Kenya Bureau of Standards (supra):…[W]e must reiterate that arbitration is meant to expeditiously resolve commercial and other disputes where parties have submitted themselves to that dispute resolution mechanism. The role of courts has been greatly diminished notwithstanding the narrow window created by sections 35 and 39 of the Act. To expect arbitration disputes to follow the usual appeal mechanism in the judicial system to the very end would sound a death knell to the expected expedition in such matters and our decisions in Nyutu and Synergy should not be taken as stating anything to the contrary.” (Emphasis added). 30.It is clear from the foregoing that the Supreme Court did not completely lock out the appellate door in arbitration proceedings. What it did was restrict and circumscribe the appellate avenue to only “legitimate claims which fall within the ambit of the exceptional circumstances necessitating an appeal”. In this case, it is contended that the effect of upholding this Court’s decision would be to sanitise a contract entered into by parties in violation of the constitutional and statutory provisions. Without purporting to make determination on the appellate jurisdiction of the Supreme Court in arbitral proceedings, we decline to dismiss the application on the ground of want of jurisdiction. 31.On the issue whether what the applicant intends to raise at the Supreme Court involves matters of general public importance, the application is brought pursuant to the provisions of Article 163(4) of the Constitution which provides that appeals shall lie from the Court of Appeal to the Supreme Court as of right in any case involving the interpretation or application of the Constitution; and in any other case where the Supreme Court, or the Court of Appeal, certifies that a matter of general public importance is involved. The Supreme Court’s guidance is that matters of general public importance are those that inter alia, raise a substantial point of law, or occasion a state of uncertainty in the law or arise from contradictory precedents, or will affect a considerable number of persons in general, or as litigants. 32.In arriving at our determination, we must be careful not to wade into the merits of the intended appeal to the Supreme Court as was appreciated by this Court in Mwambeja Ranching Company Ltd & another v Kenya National Capital Corporation [2023] KECA 660 (KLR) where it was held that:“This Court has the duty to ensure that the case does not involve a mere question of law, but a substantial question of law. Hence, an applicant must satisfy this test to assume jurisdiction under Article 164 (4) of the Constitution. (See Supreme Court of India in Chunila v Mehta & Sons Ltd v Century SPG & Manufacturing Co Ltd 1962 AIR 1314, 1962 SCR Supl. (3) 549).71.To qualify as a question of law arising from the case, there must have been a foundation laid in the pleadings, the question should emerge from the findings of facts arrived at by the court so as to make it necessary to determine that question of law and arrive at a just and proper decision. If the question is settled by the highest court, or if the general principles to be applied in determining the question are well settled, and there remains the question as to the application of those principles, or that the plea raised is palpably absurd, the question ought not to be viewed as a substantial question of law.” 33.The issue for determination in this application therefore is whether the intended appeal to the Supreme Court raises a matter of general public importance. The Supreme Court set the parameters/principles governing the determination of a matter as one of general public importance in the case of Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone (supra) as follows:i.for a case to be certified as one involving a matter of general public importance, the intending appellant must satisfy the Court that the issue to be canvassed on appeal is on the determination of which transcends the circumstances of the particular case, and has a significant bearing on the public interest;ii.where the matter in respect of which certification is sought raises a point of law, the intending appellant must demonstrate that such a point is a substantial one, the determination of which will have a significant bearing on the public interest;iii.such question or questions of law must have arisen in the Court or Courts below, and must have been the subject of judicial determination;iv.where the application for certification has been occasioned by a state of uncertainty in the law, arising from contradictory precedents, the Supreme Court may either resolve the uncertainty, as it may determine, or refer the matter to the Court of Appeal for its determination;v.mere apprehension of miscarriage of justice, a matter most apt for resolution in the lower superior courts, is not a proper basis for granting certification for an appeal to the Supreme Court; the matter to be certified for a final appeal in the Supreme Court, must still fall within the terms of Article 163 (4)(b) of the Constitution;vi.the intending applicant has an obligation to identify and concisely set out the specific elements of “general public importance” which he or she attributes to the matter for which certification is sought;vii.determinations of fact in contests between parties are not, by themselves, a basis for granting certification for an appeal before the Supreme Court.” 34.In this case we have considered the issues that the applicants intend to raise before the Supreme Court. From the submissions, the applicant intends to urge the Supreme Court to determine: whether an arbitral tribunal can disregard a provision of the Constitution or statute and proceed to base an award on an illegal and unenforceable interpretation of a contract that varies and/or supplements the procurement contract; whether a variation to a public procurement contract contrary to statutory provisions and Article 227 of the Constitution can be a basis for challenging a valid and enforceable arbitral award; whether a variation to a procurement contract or a supplementary contract can exceed the scope permitted under the Act as read with the repealed Act; whether an arbitral award that is contrary to the provisions of Article 227 of the Constitution, the Act and the repealed Act can be adopted and enforced as a judgment of the High Court; whether a supplementary contract or variation that exceeds the permissible variations under the Act and the repealed Act must be subjected to a fresh procurement process; whether an arbitral award that is contrary to the Constitution or express statutory provisions of the Act and the repealed Act ought to be set aside as a matter of public policy; and whether all procurement contracts by a public entity are subject to the provisions of the Act and the repealed Act. The applicant intends to urge the Supreme Court to address itself as to the extent to which courts should intervene under section 10 of the Arbitration Act in arbitration proceedings where an arbitrator disregards the constitutional principles and statutory provisions of the Act and the repealed Act. 35.In our view, the above issues raise substantial points of law and their determination will have significant bearing on the public interest since the public will be in a position to determine how to deal with public bodies when entering into contracts and the extent to which such contracts are to be varied without subjecting them to a fresh procurement process. 36.It was further contended by the applicant that since the findings and determination of this Court significantly affect all procurement disputes referred to arbitration, an appeal to the Supreme Court will give guiding principles on the scope and extent of public policy to the setting aside of arbitral awards. Unless the issues are resolved, the decision of this Court will have the effect of substituting the constitutional principle on procurement and the protection afforded by the statute in prohibiting uncontrolled variation of public procurement contracts. The adoption of an arbitral award, according to the applicant, that is against public policy and is based on interpretation that a supplemental contract executed under the provisions of section 47 of the repealed Act can exceed the variation allowable under the Act, a finding which will open the floodgates for contracts to illegally exceed the scope of work intended and/or contracted under the guise that payment for such works becomes due and owing despite the failure to tender afresh for the exceeding scope of goods and services variation allowable under the Act. 37.We agree that the intended appeal will clarify the extent to which arbitral awards are binding where there is an allegation that the award is contrary to the provisions of the law and the Constitution and whether such awards may be set aside on grounds of being contrary to public policy. 38.In our view the matters which the applicant intends to take up before the Supreme Court raise substantial points of law on applicability of public policy to arbitral awards; seek to settle a state of uncertainty in the law regarding the extent to which contracts by public bodies may be varied without the necessity to subjecting the variation to a fresh procurement process. 39.It is therefore our view that this application meets the test set out in Hermanus Phillipus Steyn v Giovanni Gnecchi- Ruscone (supra) and warrants certification. We accordingly find the Notice of Motion dated 7th November 2023 merited. We hereby issue a certificate under Article 163(4)(b) of the Constitution that the applicant’s intended appeal to the Supreme Court raises matters of general public importance and we grant leave to the applicant to lodge its appeal to the Supreme Court against the judgment of this Court delivered in this appeal on 27th October 2023. 40.It is so ordered. DATED AND DELIVERED AT NAIROBI THIS 10TH DAY JULY, OF 2026G. V. ODUNGA…………………………JUDGE OF APPEALG. I. ONG’UDI…………………………JUDGE OF APPEALB. ONGAYA…………………………JUDGE OF APPEALI certify that this is the signed true copy of the originalDEPUTY REGISTRAR