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Court of AppealAllowedNotice of Motion under section 39(2) of the Arbitration Act, No. 4 of 2015 and Rule 4 of the Court of Appeal Rules· [2018] KECA 814 (KLR)

Savings Tea Brokers Ltd v Kenya Tea Development Agency Ltd & 7 others [2018] KECA 814 (KLR)

Court of Appeal of Kenya
16 February 2018
3,100 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal excused a short filing delay in an arbitration appeal, confirming that honest explanations for delay will be accommodated rather than punished.

What this practically means

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Executive summary

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This is a single-Judge ruling of the Court of Appeal delivered by P. O. Kiage, JA on 16 February 2018 in Nairobi. Savings Tea Brokers Limited sought, by motion under section 39(2) of the Arbitration Act and Rule 4 of the Court of Appeal Rules, leave to file out of time an application for special leave to appeal to the Full Court against a ruling of Gikonyo J of 13 July 2015 in High Court Miscellaneous Application No. 129 of 2014, which had rejected the applicant's request for leave to appeal against the partial setting aside of an arbitral award of Rtd Justice Ringera. The motion was opposed on grounds that the 17-day delay was inordinate and unexplained, and that under the Court of Appeal's decision in NYUTU AGROVET LTD v AIRTEL NETWORKS LTD no right of appeal lies from a High Court decision in a section 35 application. The Judge held that under the current Rule 4 an applicant need not show 'sufficient cause', that the delay was not inordinate, and that counsel's candid uncertainty about whether a right of appeal lay - a question the Judge regarded as unsettled given pending Supreme Court proceedings on NYUTU - was a plausible explanation. No real prejudice to the respondents was shown and the applicant's conduct was candid. The application was allowed, with the applicant directed to file and serve the application for leave to appeal within seven days, and costs of the motion to be in that application. The ruling does not determine whether leave to appeal will ultimately be granted.

Key legal issues

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01

Whether the 17-day delay in filing the application for leave to appeal should be excused

Holding

Yes; the delay was not inordinate and the explanation - counsel's genuine uncertainty about whether a right of appeal lay - was plausible.

Reasoning

The Judge applied the settled Rule 4 factors. Seventeen days was not unconscionably long, and the explanation of counsel seeking senior advice on an unsettled point of law was candid and plausible rather than indolence. No prejudice to the respondents beyond continuation of litigation was shown, and the applicant's conduct disclosed no inequity.

p. 3
02

Whether ignorance of the correct legal position can constitute a sufficient reason for delay

Holding

Where counsel's perplexity is genuine and candidly disclosed, it is not mere culpable ignorance.

Reasoning

The respondent argued the explanation amounted to inadmissible ignorance. The Judge rejected that characterisation, holding that counsel were caught in a genuine procedural conundrum arising from unsettled law on appeals from section 35 decisions, and that their candour merited accommodation rather than punishment.

p. 3
03

Whether the intended appeal is wholly fanciful given the NYUTU decision

Holding

No; the state of the law on appeals from High Court decisions in arbitral matters is unsettled, with the NYUTU question pending before the Supreme Court.

Reasoning

The Judge noted that NYUTU AGROVET had been escalated to the Supreme Court (Petition No. 12 of 2016) together with the SYNERGY INDUSTRIAL CREDIT appeal, and that he had himself, in a concurring opinion in JSC v Kalpana Rawal, expressed difficulty with NYUTU. The intended quest was therefore not a hopeless cause.

p. 4

Legal principles established

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  • Under the current Rule 4 of the Court of Appeal Rules there is no requirement that an applicant show 'sufficient cause' for extension of time; the discretion is wide but judicial.
  • The considerations for extension of time are the length and reason for the delay, prospects of the appeal, prejudice to the respondent, and the general conduct of the parties; they are indicative, not exhaustive.
  • A comparatively short delay may be excused if fully explained; candour by counsel is not to be punished.

Court orders

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  1. 1.Leave granted to the applicant to file out of time an application for special leave to appeal to the Full Court
  2. 2.The applicant to file and serve the application for leave to appeal within SEVEN (7) days of the date of the ruling
  3. 3.Costs of the motion to be in the application for leave to appeal

Authorities

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Legislation

  • Arbitration Actsection 39(2)
  • Arbitration Actsection 39(3)
  • Arbitration Actsection 35
  • Arbitration Actsection 39
  • Court of Appeal RulesRule 4
  • Constitution of Kenya, 2010Article 164(3)
  • United Nations Model Lawnot specified

Cases cited (11)

  • NYUTU AGROVET LTD vs. AIRTEL NETWORKS LTD
    [2015] eKLR
  • KENYA SHELL LTD vs. KOBIL PETROLEUM LTD
    [2006] 2EA 132
  • NJAGI vs. MUNYIRI
    [1975] EA 179
  • KIBORO vs. POSTS & TELECOMMUNICTIONS CORPORATION
    [1974] EA 155
  • ESSO STANDARD vs. INCOME TAX
    [1971] EA 127
  • JUDICIAL SERVICE COMMISSION & ANOR vs. HON. (LADY) JUSTICE KALPANA H. RAWAL
    [2015] eKLR
  • PAUL WANJOHI MATHENGE vs. DUNCAN GICHANA MATHENGE
    [2015] eKLR
  • PRINCIPAL SECRETARY MINISTRY OF DEFENCE & THE ATTORNEY GENERAL vs. DOROTHY KANYUA & ANOR
    Nyeri Civil Application No. 19 of 2016
  • GITETU vs. KENYA COMMERCIAL BANK LTD
    [2009] KLR 545
  • POTHIWALLA vs. KIDOGO BASI HOUSING CO-OP SOCIETY LTD & 31 OTHERS
    [2005] KLR 733
  • SYNERGY INDUSTRIAL CREDIT LTD vs. CAPE HOLDINGS LIMITED
    Civil Appeal No. 81 of 2016
On appeal from
High Court of Kenya
High Court Miscellaneous Application No. 129 of 2014
Jurisdiction invoked
Section 39(2) of the Arbitration Act, No. 4 of 2015 and Rule 4 of the Court of Appeal Rules; Article 164(3) of the Constitution cited by the applicant as the substantive jurisdictional provision

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Savings Tea Brokers Ltd v Kenya Tea Development Agency Ltd & 7 others [2018] KECA 814 (KLR)", Case Analysis (2018). Notice of Motion under section 39(2) of the Arbitration Act, No. 4 of 2015 and Rule 4 of the Court of Appeal Rules. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/814/eng@2018-02-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.