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Court of AppealDismissedCivil Application E254 of 2020· [2022] KECA 997 (KLR)

Njama Limited v Kenya Agricultural & Livestock Research (Formerly Kenya Agricultural Research Institute)

Court of Appeal
23 September 2022
DMD K MusingaWKW KaranjaMAM S Asike-Makhandia
1,712 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 confirmed that arbitration disputes must follow the Arbitration Act's own procedures, and winning extra time to appeal does not guarantee permission to appeal.

What this practically means

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Executive summary

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Njama Limited, a successful bidder for rehabilitation works at KARI NVRC Muguga, obtained an arbitral award of Ksh. 20,225,455.40 plus costs in its favour on 31st August 2012. The respondent's application to set aside the award succeeded in a ruling dated 17th April 2015. The applicant then sought orders referring the matter back to arbitration, but by a ruling dated 18th January 2017 Ochieng J dismissed the application, holding that the orders setting aside the award were final. An oral application for leave to appeal was declined. The applicant later obtained an extension of time under Rule 4 of the Court of Appeal Rules and moved the Court of Appeal for leave to appeal against the 2017 ruling. The respondent opposed, arguing estoppel, functus officio, the restricted nature of arbitration appeals, and prejudice from delay. A three-judge bench of the Court of Appeal (Musinga, Karanja and Asike-Makhandia, JJA) unanimously dismissed the application with costs. The court held that the intended appeal targeted not the setting-aside decision but the refusal to refer the matter back, and therefore did not fall within sections 35 or 39 of the Arbitration Act; the impugned ruling was predicated on sections 3A, 3B and 63 of the Civil Procedure Act, which do not apply to the self-sufficient Arbitration Act. The applicant should have invoked section 35(4) of the Arbitration Act to seek suspension of the setting-aside proceedings. The court also held that the extension of time granted under Rule 4 did not mean leave would be automatically granted.

Key legal issues

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01

Scope of sections 35 and 39 of the Arbitration Act

Holding

The intended appeal, being against the decision declining to refer the matter back to arbitration rather than against the setting aside of the award, does not fall within sections 35 or 39 of the Arbitration Act.

Reasoning

The court distinguished the decision setting aside the award from the later ruling declining to reopen the matter. The latter was predicated on sections 3A, 3B and 63 of the Civil Procedure Act, not arbitral law, so the appeal could not be framed under the Arbitration Act.

p. 3
02

Correct procedural route for resuming arbitral proceedings

Holding

The applicant ought to have invoked section 35(4) of the Arbitration Act, which allows the High Court, when setting aside an award and if so requested by a party, to suspend the setting-aside proceedings to allow the tribunal to resume and eliminate the grounds for setting aside.

Reasoning

The court reproduced section 35(4) verbatim and described it as self-explanatory. The applicant's application before Ochieng J was deficient because it invoked the Civil Procedure Act instead of this provision.

p. 3
03

Effect of extension of time under Rule 4

Holding

The extension of time granted by Ouko J under Rule 4 to file the intended appeal did not mean that leave to appeal would be automatically granted.

Reasoning

The court observed that no provisions of law invoking its jurisdiction were cited on the face of the application; the applicant relied only on the extension of time, which was insufficient to obtain leave.

p. 3

Legal principles established

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  • The Arbitration Act is self-sufficient and, unless otherwise stated in the Act itself, provisions of the Civil Procedure Act do not apply to arbitration matters.
  • Extension of time to file an application for leave to appeal under Rule 4 does not mean that leave will be automatically granted.

Court orders

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  1. 1.The application for leave to appeal is dismissed with costs to the respondents

Authorities

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Legislation

  • Arbitration Actsection 35
  • Arbitration Actsection 35(4)
  • Arbitration Actsection 39
  • Civil Procedure Actsection 3A
  • Civil Procedure Actsection 3B
  • Civil Procedure Actsection 63
  • Constitution of KenyaArticle 159
  • Court of Appeal Rulesrule 4

Cases cited (2)

  • Geo Chem Middle East v. Kenya Bureau of Standards
    [2019] eKLR

    That appeals to this Court from an arbitration award are restricted and granting leave would be detrimental to expeditious disposal of arbitration matters

  • Synergy Industrial Credit Limited v. Cape Holdings Limited
    [2019] eKLR

    Same proposition - restricted appeals from arbitration awards and expeditious disposal of arbitration matters

On appeal from
High Court at Nairobi
Misc. Application No. 514 of 2014
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (application for leave to appeal); no provision invoking jurisdiction cited on the face of the application

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, "Njama Limited v Kenya Agricultural & Livestock Research (Formerly Kenya Agricultural Research Institute)", Case Analysis (2022). Civil Application E254 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/997/eng@2022-09-23

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