https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8594

Universal Corporation Limited v Kenya Medical Supplies Authority (Miscellaneous Application E399 of 2024) [2026] KEHC 8594 (KLR) (Commercial and Tax) (12 June 2026) (Ruling) Neutral citation: [2026] KEHC 8594 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Miscellaneous Application E399 of 2024 FG Mugambi, J June 12, 2026 Between Universal Corporation Limited Applicant and Kenya Medical Supplies Authority Respondent Ruling Introduction and Background 1.The dispute herein arises from an arbitration. By a Ruling dated 17th April 2026, this Court recognized the Final Arbitral Award dated 16th October 2023 published by the sole arbitrator, Honourable Dr. Wyne Kenneth Mutuma PhD, C.Arb. The Applicant, (UCL), thereafter filed an application dated 30th January 2026 seeking a review of that Ruling and a stay of further proceedings pending the determination of the review on the ground that there exists an error apparent on the face of the recognition Ruling. 2.In opposition, KEMSA, (the Respondent), filed a Preliminary Objection dated 13th February 2026 raising three grounds. First, that under section 10 of the Arbitration Act, which constitutes a complete and self-contained code, this Court has no jurisdiction to review its Ruling delivered pursuant to section 36 of the Arbitration Act. Second, that the application is fatally defective, inadmissible and incompetent, having been brought under provisions that have no application to arbitration proceedings, namely sections 1A, 1B, 3A and 80 of the Civil Procedure Act and Order 45 Rule 1(1) of the Civil Procedure Rules, 2010. Third, that this Court is functus officio, the issues raised in the application having been conclusively heard and determined in the Ruling of 17th April 2026 after full consideration of the arguments of both parties. 3.I have carefully considered the written submissions filed by both parties. Analysis and Determination 4.KEMSA relies on the decisions in Kamconsult Limited V Telcom Kenya Limited & Another, (NBI CA No. 8 of 2009) and Ann Mumbi Hinga V Victoria Njoki Gathara, (NBI CA No. 92 of 2009) for the proposition that once an arbitral award is recognized under section 36 of the Arbitration Act, this Court's jurisdiction is wholly spent and that even a review of this Court's ruling on that recognition is barred. 5.The decisions relied upon by KEMSA however predate the Supreme Court's landmark pronouncements in Nyutu Agrovet Limited V Airtel Networks Kenya Limited, [2019] KESC 11 (KLR) and Geo Chem Middle East V Kenya Bureau of Standards, [2020] KESC 1 (KLR), which authoritatively settled the question of what supervisory jurisdiction remains available after the High Court has dealt with an application under sections 35 or 36 of the Arbitration Act. 6.In Nyutu, the Supreme Court held that, in the absence of an express statutory bar to appeals under section 35, an unfair determination by the High Court cannot be absolutely immune from appellate review. The Court recognized that, in exceptional circumstances, the Court of Appeal retains residual jurisdiction to enquire into such unfairness, not to re-open the merits of the arbitral award, but to correct a fundamentally unjust exercise of the supervisory function itself. 7.The Court stated in part as follows:“With regard to jurisdictions that grant leave to appeal, courts have held that leave to appeal may be granted where there is unfairness or misconduct in the decision making process and in order to protect the integrity of the judicial process. In addition, leave would be granted in order to prevent an injustice from occurring and to restore confidence in the process of administration of justice. In other cases, where the subject matter is very important as a result of the ensuing economic value or the legal principle at issue. An appeal may also arise when there is need to bring clarity to the law by settling conflicting decisions. However as cautioned by the Singapore Courts, an intervention by the Courts should not be used as an opportunity to delve into the merits of the arbitral award but rather that the intervention should be limited to the narrowly circumscribed instances for reviewing or setting aside an award. 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.” 8.Likewise, in Geo Chem (Synergy), the Supreme Court reaffirmed this position, holding that even in promoting the core tenet of arbitration speed and efficiency in commercial dispute resolution that objective cannot be pursued at the expense of real and substantive justice. Residual jurisdiction exists, the Court held, to safeguard the integrity of the administration of justice, particularly where no express bar exists. The Court was, however, careful to caution that this jurisdiction must not become an instrument for subverting statute or undermining the arbitral process. Again, the Supreme Court stated in part:“Therefore, even in promoting the core tenet of arbitration which is a quicker and efficient way of settling commercial disputes, that should not beat the expense of real and substantive justice. In the interest of safeguarding the integrity of the administration of justice and particularly in the absence of an express bar we, like the House of Lords in Inco Europe Ltd & others (supra) hold that the Court of Appeal should have residual jurisdiction but only in exceptional and limited circumstances.” 9.Applying the decisions to the matter before me, the present application concerns not an appeal but a review of this Court's Ruling. However, the principle established in Nyutu and affirmed in Geo Chem applies with equal force in this context. I take the view that if the Court of Appeal, a superior court, retains residual jurisdiction to correct an unjust High Court determination on an arbitration matter, it would be incongruous to hold that this Court cannot review its own ruling where there is an error apparent on the face of the record that would occasion injustice. 10.It must be emphasized, however, that the review jurisdiction recognized here is strictly circumscribed. It does not extend to an examination of the merits of the arbitral award. That boundary is absolute. What it permits is no more than the correction of an error apparent on the face of the record where failing to do so would occasion injustice. Significantly, just as the Supreme Court found no express statutory bar to appeals to the Court of Appeal under section 35, there is equally no express bar to a review of this Court's ruling under section 36. 11.Accordingly, I hold that this Court has jurisdiction to entertain the present application for review. Whether the applicant will ultimately succeed on the merits is a separate question entirely. 12.Having established jurisdiction, the absence of a specific procedural provision within the Arbitration Act does not extinguish it. I take the position that section 1A and 1B of the Civil Procedure Act, which enshrine the overriding objective of just, expeditious and proportionate determination of disputes, are not causes of action but interpretive guides available to the court in any proceedings before it. The ground of relying on provisions of the Civil Procedure Rules does not, without more, render the application itself incompetent, provided the underlying jurisdiction is established. This ground therefore fails. 13.The third ground, the doctrine of functus officio holds that once a court has exercised its jurisdiction and delivered a final decision on a matter, it is done with that matter and cannot revisit it. That is precisely what a review application invites the Court to reconsider; not to reopen the proceedings afresh, but to examine whether the ruling as delivered contains an error apparent on the face of the record. The doctrine of functus officio cannot logically be invoked to bar a review, because the review jurisdiction exists specifically to operate after a ruling has been delivered. 14.To hold otherwise would be to say that the review jurisdiction cannot ever be exercised, because the moment a ruling is delivered the court becomes functus officio. That is plainly untenable. The real question is not whether this Court has already pronounced itself; it has, but whether, in doing so, it committed an error that warrants correction. That question goes to the merits of the review, not to the threshold of jurisdiction. This ground accordingly fails. Disposition 15.For all these reasons, the Preliminary Objection is accordingly dismissed with costs. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 12TH DAY OF JUNE 2026.F. MUGAMBIJUDGE