Pink Pearl Investments Ltd v Esteel Construction Ltd (Commercial Miscellaneous Application E805 of 2025) [2026] KEHC 12218 (KLR) (Commercial and Tax) (31 July 2026) (Ruling)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI COMMERCIAL AND TAX DIVISION CORAM: F. MUGAMBI, J COMM MISC APPLN NO. E805 OF 2025 PINK PEARL INVESTMENTS LTD …. RESPONDENT/APPLICANT BETWEEN ESTEEL CONSTRUCTION LTD …….. CLAIMANT/RESPONDENT AND RULING Introduction and Background 1. This Ruling determines the application dated 2nd April 2026, filed by the respondent (ESTEEL), seeking to review the decision of this Court that was delivered on 27th February 2026 (the Ruling). By the said Ruling, this Court allowed the Originating Summons dated 1st August 2025 that had been filed by the applicant (PINK PEARL) and set aside the finding of the Learned Sole Arbitrator, Hon. Steve Oundo, that the Arbitral Tribunal lacked jurisdiction to entertain PINK PEARL's counterclaim. MISC APPLN NO. E805 OF 2025 RULING Page 1 The Court declared that the counterclaim was properly before the Tribunal. 2. ESTEEL's application is founded on the grounds that there is an error on the face of the record, and on any other grounds as provided for under Order 45. It states in summary that the dispositive orders of the Ruling fail to give effect to the Court's own reasoning at paragraph 24, thereby creating what ESTEEL describes as ambiguity and a material inconsistency between the Court's reasoning and its final orders. As far as ESTEEL is concerned, paragraph 24 represented a part of the pronouncement and as such should have been included in the extracted orders by the Deputy Registrar. ESTEEL equally states that the Court did not consider the entirety of Rules 45.3 to 45.7 on arbitrability of a dispute as well as the interplay between Rules 22 and 29 of the CIArb Arbitration Rules, 2020. 3. The application is opposed by way of a replying affidavit sworn by SADHU SINGH, a Director of PINK PEARL on 25th May 2026. PINK PEARL asserts that the mischaracterization of parties in the application MISC APPLN NO. E805 OF 2025 RULING Page 2 renders it fatally defective, is statutorily barred by the express finality of Section 17(6) of the Arbitration Act, that paragraph 24 of the Ruling constituted part of the ratio decidendi and was not an extractable relief under Order 21 Rule 7(1). PINK PEARL also reminds ESTEEL that it was ESTEEL that elected not to file an application for review in the first place and by so doing abandoned the procedural remedy available to it under Order 21 Rule 8(4). PINK PEARL maintains that the grounds advanced in the application do not meet the threshold for review under Order 45. Both parties filed written submissions, which I have considered alongside the application, the replying affidavit, and the record as a whole. Analysis and Determination 4. Before descending into the substance of the application, it is necessary to dispose of three preliminary points raised by PINK PEARL, each of which, if upheld, would dispose of the application without recourse to its merits. 5. PINK PEARL contends that the application is fatally defective on account of a mischaracterization of MISC APPLN NO. E805 OF 2025 RULING Page 3 the parties. ESTEEL, for its part, does not deny that an error occurred, but explains that it was inadvertent and that a notice to rectify the record was promptly filed. It is my finding that an error in the description or characterization of a party, once identified, promptly corrected by way of a formal notice, and productive of no prejudice to the opposing party who is under no misapprehension as to the true identity or standing of the parties, is a technical and curable defect. It does not go to the jurisdiction of the Court or to the substance of the application. Article 159(2)(d) of the Constitution enjoins courts to administer justice without undue regard to procedural technicalities, and it would run contrary to that constitutional imperative to strike out an otherwise arguable application on account of a rectified clerical error that has occasioned no prejudice. This objection accordingly fails. 6. PINK PEARL next contends that the application is statutorily barred, given the express finality that section 17(6) of the Arbitration Act confers on this Court's decisions made thereunder. It is correct, as affirmed in Nyutu Agrovet Limited V MISC APPLN NO. E805 OF 2025 RULING Page 4 Airtel Networks Kenya Limited; Chartered Institute of Arbitrators-Kenya Branch (Interested Party), [2019] KESC 11 (KLR), that a decision of this Court under section 17(6) is final and not ordinarily appealable, save in exceptional circumstances warranting leave to the Court of Appeal. 7. Section 17(6) provides that ‘The decision of the High Court shall be final and shall not be subject to appeal’. My reading of section 17(6) is that the finality is directed at foreclosing appellate scrutiny of the decision by a superior court. The provision says nothing about the residual jurisdiction of this Court to review its own record for a self-evident error apparent on the face thereof, a jurisdiction conferred by Order 45 of the Civil Procedure Rules and exercised by the very court that rendered the decision, not by another forum re- examining its correctness. Absent a clear statutory language excluding review as well as appeal, I am not prepared to hold that section 17(6) extinguishes this Court's narrow, self-correcting review jurisdiction. This objection, too, fails. MISC APPLN NO. E805 OF 2025 RULING Page 5 8. Finally, the argument that ESTEEL had abandoned the remedy available to it under Order 21 Rule 8(4) of the Civil Procedure Rules would not affect the right to seek review which right runs from the date of the decision sought to be reviewed and is governed by the independent timelines. Having disposed of the preliminary points I now turn to consider the application on its merits. 9. It is trite that the jurisdiction to review a decision is not an invitation to re-litigate a matter already determined, nor is it a substitute for an appeal. The grounds upon which review may properly be sought are narrow and well defined under Order 45 Rule (1). They are discovery of a new and important matter which, after the exercise of due diligence, was not within the applicant's knowledge or could not be produced at the time the decision was made; the existence of a mistake or error apparent on the face of the record; or other sufficient reason analogous to the foregoing. 10. Where, as here, the ground relied upon is an ‘error on the face of the record’, the threshold is a MISC APPLN NO. E805 OF 2025 RULING Page 6 demanding one. The Court of Appeal in National Bank of Kenya Limited v Ndungu Njau [1996] KLR 469 explained what constitutes an error of law apparent on the face of the record and the scope of review as follows: “A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the Court. The error or omission must be self-evident and should not require an elaborate argument to be established. It will not be a sufficient ground for review that another Judge could have taken a different view of the matter. Nor can it be a ground for review that the Court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provision of law cannot be ground for review. (emphasis mine) MISC APPLN NO. E805 OF 2025 RULING Page 7 11. ESTEEL's principal complaint is that paragraph 24 of the Ruling, which records the Court's conclusion that its supervisory jurisdiction "does not extend to a wholesale re-examination of the merits of the dispute" and that it "must refrain from making any further pronouncements on the substantive issues," was part of the Court's pronouncement and ought to have been included in the orders extracted by the Deputy Registrar, and that its omission creates ambiguity and a material inconsistency with the Disposition. 12. I do not accept this argument. I agree with PINK PEARL’s approach that paragraph 24 forms part of the Court's ratio decidendi, that is, the reasoning by which the Court explained the limits of the jurisdiction it was exercising. From a plain reading of the paragraph, it does not, in itself, grant any relief to any party, nor does it direct any party to do or refrain from doing anything. An extracted order drawn under Order 21 Rule 7(1) of the Civil Procedure Rules ought to reflect, in my view, the operative, dispositive part of a judgment or ruling, that is to say, the orders actually made, MISC APPLN NO. E805 OF 2025 RULING Page 8 and not the whole of the reasoning that precedes and supports them. 13. As such, it was neither necessary nor proper for the Deputy Registrar to extract paragraph 24 as a freestanding order, since it constitutes no order at all. It is explanatory of why the Court confined itself to the orders that were in fact made at paragraphs (i) to (iv) of the Disposition. There is, accordingly, no error, still less one apparent on the face of the record, in the extracted order's omission of paragraph 24. 14. The Ruling, from paragraphs 12 to 23, dealt with the jurisdictional question which was before it and addressed itself to the relevant clauses of the JBC Contract, the CIArb Arbitration Rules and the authority relied upon by the Learned Arbitrator in addition to the Claim and Counterclaims raised by the parties before the Tribunal. From these, the Court concluded, for the reasons given, that the imposition of a condition precedent was not anchored in the contract or the applicable rules and was accordingly ultra vires. I do not therefore accept that the Court failed to consider the totality MISC APPLN NO. E805 OF 2025 RULING Page 9 of the contractual and procedural framework said to bear on arbitrability. The record discloses the contrary. 15. In my view, what ESTEEL in truth complains of is not that these matters went unconsidered, but that the Court did not set out its consideration of them in the sequence, at the length, or with the particularity that ESTEEL, as the respondent to the Originating Summons, would have preferred. That is not the same thing. A court which weighs the relevant clauses and rules cumulatively and states its conclusion is not thereby shown to have overlooked any one of them. The brevity or structure of a court's exposition is a matter of style and judicial economy, not evidence of omission. The same case applies to ESTEELs submissions on the effect of practical completion, the issuance of the Final Certificate, and discharge of the Contract, which the court duly considered but came to its conclusion. 16. The fact that ESTEEL takes the view that a fuller or different treatment of Clauses 45.3 to 45.7, or of the interplay between Rules 22 and 29, was MISC APPLN NO. E805 OF 2025 RULING Page 10 warranted, or would have yielded a different or better-reasoned outcome, is, at its highest, a disagreement with the adequacy of the Court's reasoning or with the conclusion reached. That is a matter for appeal, where an appeal lies, and is not, without more, a ground for review. 17. It must be remembered that in determining the arbitrability of the Counter Claim, the Court specifically declined to determine, or even to touch upon, the merits of the counterclaim itself, that is to say, the underlying factual and contractual disputes between the parties concerning the project. Those substantive matters, whatever they may be, remain entirely for the Arbitral Tribunal to determine 18. Paragraph 24, therefore, properly understood, is not a qualification of the jurisdictional finding recorded in the Disposition but a statement of what the Court did not, and could not properly, decide. The Court interrogated the pleaded grounds in the Originating Summons which was what was before the Court. MISC APPLN NO. E805 OF 2025 RULING Page 11 19. I am accordingly satisfied that none of the grounds advanced, whether taken singly or cumulatively, discloses an error apparent on the face of the record or any other sufficient reason for review or varying of the Ruling within the meaning of Order 45. Disposition 20. For the foregoing reasons, the application dated 2nd April 2026 is hereby dismissed with costs. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 31 ST DAY OF JULY 2026. F. MUGAMBI JUDGE Delivered in presence of: Mathenge for the respondent Ms Handa for the respondent Ometo h/b for Ms Neky for applicant Court Assistant: Lillian MISC APPLN NO. E805 OF 2025 RULING Page 12