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Court of AppealAllowedNotice of motion dated 29th March 2019 (Civil Application)· [2021] KECA 3 (KLR)

Kuria v Gachanjo & another (Civil Application 101 of 2019) [2021] KECA 3 (KLR)

Court of Appeal of Kenya
23 September 2021
HOHannah Okwengu
1,700 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 gave a litigant more time to seek leave to appeal an arbitration-related ruling, prioritizing access to justice over a missed deadline.

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 (Okwengu, JA) on a notice of motion dated 29th March 2019 brought under Rule 4 of the Court of Appeal Rules, seeking extension of time to file an application for leave to appeal the ruling of the High Court (Makau, J.) of 17th January 2019, which had recognized and adopted an arbitral award by Eunice Lumallas as a decree of the court and declined leave to appeal. The applicant filed his notice of appeal within 14 days but delayed in seeking leave, attributing the delay to his wife's illness following surgery in India and the delay in obtaining certified copies of the order. The respondent opposed, counting a 73-day delay, attacking the unsubstantiated illness explanation, and relying on Nyutu Agrovet Ltd v Airtel Networks to argue there were no special circumstances for an appeal. The Court restated that under section 39(3)(b) of the Arbitration Act leave is required to appeal a High Court decision arising from an arbitral award, with the Court of Appeal Rules timelines applying. Although the explanation for the delay was found unsatisfactory, the Court held the delay of about two months was not inordinate, the respondent would suffer no prejudice, and refusal would shut the applicant out from the seat of justice. The motion was allowed with leave to file the leave application within 14 days. No costs order is recorded.

Key legal issues

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01

Extension of time under Rule 4 for filing an application for leave to appeal

Holding

The delay of about two months was not inordinate, no prejudice was demonstrated by the respondent, and shutting the applicant out would deny him access to justice, so the discretion was exercised in his favour despite an unsatisfactory explanation.

Reasoning

The Court weighed the length of delay, the explanation given, the arguability of the intended appeal and prejudice to the respondent. Although the explanation based on the applicant's wife's illness was unsubstantiated, and the advocate could have sworn the affidavit, the delay was short and declining extension would shut the applicant out from the seat of justice entirely.

p. 4
02

Sufficiency of the explanation for delay

Holding

The explanation was unsatisfactory: once the notice of appeal was filed, it was the advocate's duty to file the leave application and the affidavit need not be sworn by the applicant; the illness claim was unsubstantiated.

Reasoning

The Court held that the filing of a notice of appeal evidenced a decision to appeal, after which the advocate seized of the matter could file and support the leave application; there was no need for the applicant personally to swear the affidavit. The illness allegation lacked supporting particulars such as travel dates, and submissions on raising legal fees were not deposed to.

p. 3

Legal principles established

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  • Under section 39(3)(b) of the Arbitration Act, an intending appellant must obtain leave of the Court to appeal against a High Court judgment arising from an arbitration award, and section 39(4) applies the Court of Appeal Rules timelines to such an appeal.
  • Once a notice of appeal is lodged within 14 days, the applicant must apply for leave to appeal before lodging the record of appeal, which must be lodged within 60 days of the notice under Rule 82(1).

Court orders

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  1. 1.The notice of motion dated 29th March 2019 is allowed
  2. 2.Leave granted to the applicant to file and serve his application for leave to appeal within 14 days from the date of the ruling

Authorities

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Legislation

  • Arbitration ActSection 35(2)(A)(iv)
  • Arbitration ActSection 39 (including 39(1), 39(2), 39(3), 39(4))
  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 39
  • Court of Appeal RulesRule 75(2)
  • Court of Appeal RulesRule 75(4)
  • Court of Appeal RulesRule 82(1)

Cases cited (1)

  • Nyutu Agrovet Ltd vs Airtel Networks (K) Limited
On appeal from
High Court of Kenya
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (single Judge) to extend time

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, "Kuria v Gachanjo & another (Civil Application 101 of 2019) [2021] KECA 3 (KLR)", Case Analysis (2021). Notice of motion dated 29th March 2019 (Civil Application). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/3/eng@2021-09-23

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