Matayo Owako Oyiera v Helda Akoo Okoth
The bottom line
#Kenya's Court of Appeal confirmed you can appeal an order refusing review of an arbitration judgment, and courts should grant time extensions when the appeal is valid.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant had a right of appeal against the order refusing review of the judgment entered on the arbitration award
- 2.Whether the learned single judge ought to have exercised his discretion under rule 4 in favour of the applicant
Key legal issues
#Whether the applicant had an automatic right of appeal against the order refusing review of the arbitration judgment
The single judge erred in holding there was no right of appeal; the appeal was intended against the order refusing review, not the judgment under rule 17(2), and such an order is appealable under O.XLII rule 1(1)(aa) or rule 3.
O.XLV rule 17(2) denies a right of appeal only against a judgment entered under that rule. Here the applicant sought to appeal not against that judgment but against the order refusing his application for review of it. Regardless of the provision under which the review application was brought, a right of appeal existed under O.XLII rule 1(1)(aa) or rule 3. The single judge's contrary conclusion was therefore an error of law.
Whether extension of time should be granted under rule 4
Since the applicant had a right of appeal, the single judge's unfettered discretion under rule 4 should have been exercised in his favour; the reference was allowed and time extended.
The applicant's earlier appeal had been struck out for want of a certified copy of the decree as required by rule 85(1)(h), forcing him to restart the appeal process. Given that the intended appeal was competent, the discretion under rule 4 ought to have favoured him. The court allowed the reference and granted specific timelines for filing the notice of appeal and the record of appeal.
Legal principles established
#- An order refusing review of a judgment entered under O.XLV rule 17(2) of the Civil Procedure Rules is itself appealable, and a litigant has a right of appeal against it under either O.XLII rule 1(1)(aa) or rule 3.
- Where an intended appeal is competent, the single judge's unfettered discretion under rule 4 should ordinarily be exercised in favour of an applicant for extension of time.
Court orders
#- 1.The reference is allowed
- 2.Time to file a notice of appeal extended by 10 days from the date of the ruling
- 3.The record of appeal to be filed within 30 days thereafter
- 4.Costs of the reference to be in the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kakamega
- H.C.C.C. No. 310 of 1988 (OS)
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (reference from decision of a single judge on extension of time)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the circumstances the single Judge was in error when he held that the applicant had no right of appeal.
In the result, we allow the reference and extend the time within which the applicant shall file a notice of appeal by 10 days from the date hereof. He shall file the record of appeal within 30 days hereafter. The costs of the reference shall be in the intended appeal.
Issues in the judgment
#The judgment states it is unclear under which provisions the review application was made, and the single judge's reasoning on the right of appeal is not stated in his ruling, leaving some uncertainty in the factual basis.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Matayo Owako Oyiera v Helda Akoo Okoth", Case Analysis (1997). Civil Application No. NAI 248 of 1995. Source:
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.