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Court of AppealOtherCourt of Appeal Commercial Miscellaneous Civil Application (not stated in the ruling; application by Notice of Motion dated 29th July 2022)· [2023] KECA 1517 (KLR)

Kamimi Company (1976) Limited v Soil Merchants Kenya Limited (Civil Application E272 of 2022) [2023] KECA 1517 (KLR)

Court of Appeal of Kenya
8 December 2023
PNP. Nyamweya
1,990 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that appeals needing special permission must go before a full panel of judges, not a single judge.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi delivered on 8th December 2023 by P. Nyamweya JA, sitting as a single Judge, on a Notice of Motion dated 29th July 2022 by Kamimi Company (1976) Limited seeking leave to appeal and extension of time to appeal out of time against a ruling of Okwany J. of 5th May 2022 in High Court Commercial Miscellaneous Civil Application No. E277 of 2021, by which the Applicant's application to set aside an arbitral award in favour of Soil Merchants Kenya Limited was struck out as filed out of time. The Respondent raised a preliminary objection on jurisdiction, contending inter alia that leave to appeal had to be sought first from the High Court, reliance being placed on Peter Nyaga Muvake vs Joseph Mutunga [2015] eKLR. The single Judge determined the preliminary issue first, noting that section 35 of the Arbitration Act makes no provision for appeals from orders on setting aside awards, and that such appeals are not among those lying as of right under section 75 of the Civil Procedure Act. Interpreting Order 43(3) of the Civil Procedure Rules, section 39 of the Arbitration Act, and Rules 41, 44, 45, 55(2), 76 and 77(2) of the Court of Appeal Rules, 2022, the court held that a single Judge's jurisdiction over extension of time applies only to appeals lying as of right; leave applications fall to a full Bench, and leave must precede any extension of time. The application was held not properly before the single Judge and was directed to be listed before a full Bench; no order as to costs was made. The High Court decision was not disturbed.

Key legal issues

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01

Whether a single Judge of the Court of Appeal can hear an application for leave to appeal and extension of time in respect of an appeal that requires leave

Holding

No. Single Judge jurisdiction over extension of time applies only to appeals as of right under Rule 76; leave applications must go to a full Bench, and leave must precede any extension of time.

Reasoning

The court examined section 75 of the Civil Procedure Act, Order 43(3) of the Civil Procedure Rules, section 39 of the Arbitration Act, and Rules 41, 44, 45, 55(2), 76 and 77(2) of the Court of Appeal Rules, 2022. Rule 55(2) bars a single Judge from hearing leave applications. Three implications were drawn: single Judge jurisdiction on extension of time is confined to appeals as of right; leave applications are outside a single Judge's jurisdiction; and leave must be granted before extension of time is considered.

p. 4
02

The effect of failure to obtain leave to appeal on the validity of a notice of appeal and the Court's jurisdiction

Holding

As held in Peter Nyaga Muvake vs Joseph Mutunga, leave to appeal is a sine qua non to a valid notice of appeal; without leave there is no valid notice of appeal and the Court's jurisdiction is not properly invoked.

Reasoning

Section 35 of the Arbitration Act does not provide for appeals from orders on setting aside arbitral awards, nor is such an appeal listed in section 75 of the Civil Procedure Act as lying as of right. The court adopted its prior holding in Peter Nyaga Muvake that where an order is appealable only with leave, an intended appeal without leave is 'dead in the water'.

p. 3

Legal principles established

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  • The jurisdiction of a single Judge of the Court of Appeal to hear and determine applications for extension of time to file an appeal applies only to appeals lying as of right under Rule 76 of the Court of Appeal Rules, 2022; applications requiring leave to appeal are outside a single Judge's jurisdiction and must be heard by a full Bench, and leave must be granted before extension of time can be considered.
  • Where leave to appeal is required, the procurement of leave is a sine qua non to the lodging of a notice of appeal; without leave there can be no valid notice of appeal and the jurisdiction of the Court is not properly invoked.

Court orders

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  1. 1.The Applicant's Notice of Motion dated 29th July 2022 was held not properly before the single Judge
  2. 2.The application shall be listed by the Registrar of the Court before a full Bench of the Court for hearing and determination
  3. 3.No order as to the costs of the application

Authorities

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Legislation

  • Arbitration ActSection 35(3)
  • Arbitration ActSection 35
  • Arbitration ActSection 39(3) and (4)
  • Arbitration ActSections 10 and 35 (as referenced in section 39(3))
  • Civil Procedure ActSection 75
  • Civil Procedure RulesOrder 43(3)
  • Civil Procedure RulesOrder 42 (as referenced in Peter Nyaga Muvake quote)
  • Court of Appeal Rules, 2022Rule 41(1)
  • Court of Appeal Rules, 2022Rules 44 and 45
  • Court of Appeal Rules, 2022Rule 55(2)
  • Court of Appeal Rules, 2022Rule 76
  • Court of Appeal Rules, 2022Rule 77(2)

Cases cited (1)

  • Peter Nyaga Muvake vs Joseph Mutunga
    [2015] eKLR
On appeal from
High Court of Kenya at Nairobi
High Court Commercial Miscellaneous Civil Application No. E277 of 2021
Jurisdiction invoked
Sections 35 and 39 of the Arbitration Act; section 75 of the Civil Procedure Act; Order 43(3) of the Civil Procedure Rules; Rules 41, 44, 45, 55(2), 76 and 77(2) of the Court of Appeal Rules, 2022

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kamimi Company (1976) Limited v Soil Merchants Kenya Limited (Civil Application E272 of 2022) [2023] KECA 1517 (KLR)", Case Analysis (2023). Court of Appeal Commercial Miscellaneous Civil Application (not stated in the ruling; application by Notice of Motion dated 29th July 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1517/eng@2023-12-08

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