Kenyatta International Convention Centre v Greenstar Systems Limited [2019] KECA 925 (KLR)
The bottom line
#The Court of Appeal refused KICC's late attempt to appeal an arbitration award, confirming Kenya's strict deadlines for challenging arbitral awards cannot be extended.
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 has laid a proper basis for the judicious exercise of the Court's discretion to grant leave to appeal out of time, having regard to the timeliness requirements of Rule 39(b) of the Court of Appeal Rules and section 39(3) of the Arbitration Act
- 2.Whether, if the threshold of timeliness were crossed, the applicant had demonstrated a point of law of general importance under section 39(3)(b) of the Arbitration Act
Key legal issues
#Whether the Court could exercise its discretion to grant leave to appeal despite inordinate delay
The application failed at the threshold: the leave application was filed nine months after the decision, outside Rule 39(b)'s 14-day requirement and outside section 39(4)'s 60-day appeal period, and the Court had no jurisdiction to extend time in arbitration matters
The Court framed timeliness as a threshold issue. Rule 39(b) requires a leave application within 14 days of the decision, and section 39(4) requires the appeal itself within 60 days of the notice of appeal. The applicant brought the motion nine months late, blaming erstwhile advocates. Following Anne Mumbi Hinga and Sewe J.'s reasoning, the Arbitration Act makes no provision for extension of time and procedural rules cannot override the Act. Delay therefore defeated the discretion, and the motion was a non-starter.
Whether the applicant had demonstrated a point of law of general importance under section 39(3)(b)
Even if timeliness were overlooked, the argument that a public agency should not pay under an illegal contract did not raise a point of law of general importance justifying leave
The arbitrator had found, unchallenged, that the applicant itself breached procurement law, rendering the tender illegal. The applicant sought to set up its own malfeasance to defeat the respondent's claim. The arbitrator had properly applied the doctrines of unjust enrichment and restitution to restore the blameless respondent to its pre-contract position. The Court held the arbitrator was entitled to that decision, and that merely paying a large sum does not of itself raise a point of law of general importance.
The finality principle and the limited right of appeal in arbitration matters
Arbitration enjoys constitutional recognition under Article 159(2)(c); party autonomy and decisional finality restrict court intervention, and the Nyutu Agrovet five-judge pronouncements on finality remain good law pending Supreme Court determination
The Court reaffirmed that parties choosing arbitration subject themselves to its finality, with courts taking a back seat except in the specific instances stipulated by the Arbitration Act. Since the parties had not agreed to a right of appeal, section 39(3)(a) did not apply, and only the narrow leave window in section 39(3)(b) with Rule 39(b) was available. The Court noted the pending Supreme Court appeal in Nyutu Agrovet but held its own decision remained binding absent contrary authority.
Legal principles established
#- There is no provision in the Arbitration Act for extension of time for seeking leave to appeal under section 39(3), and no rules of procedure can override the Act; strict compliance with the statutory timelines is imperative
- Before a party may invoke section 39(3)(b) of the Arbitration Act on a point of law of general importance, it must first surmount the ring-fence of timeliness under that provision and Rule 39(b) of the Court's rules
- The Arbitration Act is a complete code and, except as provided in the Act, no court shall intervene in matters governed by it; the finality principle and the limited windows of access to the courts under sections 35 and 39 stand in the absence of a contrary Supreme Court decision
Court orders
#- 1.The application for leave to appeal is dismissed
- 2.The applicant to pay the costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Nairobi
- Misc. Civil Appl. No. 278 of 2017
- Jurisdiction invoked
- Section 39(3)(b) of the Arbitration Act (leave of the Court of Appeal on a point of law of general importance), read with Rule 39(b) of the Court of Appeal Rules
Relief refused
#Leave to appeal out of time against the Ruling and Order of the High Court (Olga Sewe, J.) dated 19 January 2018
The application was brought nine months out of time, contrary to Rule 39(b) of the Court of Appeal Rules and section 39(4) of the Arbitration Act; there is no provision in the Arbitration Act for extension of time, so no proper basis for the exercise of discretion was laid
Stay of execution and furnishing of security
The applicant raised stay of execution and security in its affidavit without making any prayer for such orders
Costs
The application is dismissed with costs to the respondent
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 result, the application fails, and we order that it be and is hereby dismissed with costs.
in line with previous decisions of this Court, there is no provision in the Arbitration Act for extension of time, and there are no rules of procedure that can override an Act of Parliament.
Before consideration may be made under section 39 (3) (b) as to whether 'a point of law of general importance is involved the determination of which will substantially affect the rights of one or more of the parties', the party applying must surmount the first ring-fence of timeliness under the two provisions.
We are aware that the above decision was appealed and, for some time now, a decision is being awaited from the Supreme Court. In the absence of any decision to the contrary, however, this Court's decision remains good law.
In our view, the arbitrator was entitled to make the decision he did. However, this aspect of the application is not the ratio decidendi.
Issues in the judgment
#The judgment records two unsuccessful stay applications dated 23rd February and 12th July 2018, then states the High Court (Maureen Odero, J.) application was 'filed on 8th August, 2018' and 'dismissed on 18th October, 2018', but the motion before the full court is described as filed 'on 3rd July, 2018' and struck out by Nambuye, JA 'on 10th August, 2018' - a chronology in which the 8th August application postdates the 3rd July motion yet is narrated as preceding the leave proceedings
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenyatta International Convention Centre v Greenstar Systems Limited [2019] KECA 925 (KLR)", Case Analysis (2019). Civil Application No. 262 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/925/eng@2019-02-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.