Savings Tea Brokers Ltd v Kenya Tea Development Agency Ltd & 7 others [2018] KECA 814 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the 17-day delay in filing the application for leave to appeal should be excused
Yes; the delay was not inordinate and the explanation - counsel's genuine uncertainty about whether a right of appeal lay - was plausible.
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.
Whether ignorance of the correct legal position can constitute a sufficient reason for delay
Where counsel's perplexity is genuine and candidly disclosed, it is not mere culpable ignorance.
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.
Whether the intended appeal is wholly fanciful given the NYUTU decision
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.
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.
Legal principles established
#- 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
#- 1.Leave granted to the applicant to file out of time an application for special leave to appeal to the Full Court
- 2.The applicant to file and serve the application for leave to appeal within SEVEN (7) days of the date of the ruling
- 3.Costs of the motion to be in the application for leave to appeal
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.