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Court of AppealDismissedNot stated in the judgment (reference dated 8th July 2021 against ruling of Laibuta, JA)· [2024] KECA 269 (KLR)

Geothermal Development Company v Lantech Africa Limited (Civil Application E029 of 2021) [2024] KECA 269 (KLR)

Court of Appeal
8 March 2024
2,751 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 it will rarely overturn a single judge's procedural decisions, dismissing Lantech's challenge and awarding costs to Geothermal Development Company.

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 on a reference under rule 57(1)(b) of the Court of Appeal Rules, 2022, brought by Lantech Africa Limited against the decision of Laibuta, JA (sitting as a single judge) of 7th July 2021. The single judge had enlarged time for Geothermal Development Company to file its application for leave to appeal against a High Court ruling of W. Okwany, J delivered on 16th December 2020, which had upheld Lantech's preliminary objection that Geothermal's application to set aside an arbitral award was time-barred under section 35(3) of the Arbitration Act, and had allowed enforcement of the award. Lantech argued the application was omnibus, that the single judge should have referred it in its entirety to a full bench or struck it out, and that the judge failed to consider laches, material non-disclosure and rules 43 and 45 of the Court's Rules. The full bench (Asike-Makhandia, Mumbi Ngugi and Ngenye-Macharia, JJA) held that a reference is not an appeal and that a full bench may interfere with a single judge's discretion only on established grounds: consideration of an irrelevant factor, failure to consider a relevant factor, misapprehension of law or fact, or a plainly wrong decision. The Court found the single judge prudently confined himself to the enlargement-of-time prayer, the only one within his jurisdiction, and properly exercised his discretion under rule 4. The reference was dismissed with costs to Geothermal Development Company. The single judge's ruling was thereby affirmed.

Key legal issues

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01

Nature and scope of a reference against a single judge's decision

Holding

A reference is not an appeal; the full bench reviews only whether the single judge properly exercised his wide discretion under rule 4, on the established grounds of irrelevant or overlooked factors, misapprehension of law or fact, or a plainly wrong decision.

Reasoning

The Court adopted the statement in Kimathi & Another v Muriuki that a reference is not an appeal, and that interference with a single judge's discretion requires demonstration of a misdirection or an plainly wrong decision. This defines the standard of review for every subsequent reference.

p. 4
02

Treatment of an omnibus application by a single judge

Holding

Where an application contains prayers some of which fall within a single judge's jurisdiction and others (such as leave to appeal) which do not, the single judge properly decides the prayers within his jurisdiction and refers the rest to a full bench.

Reasoning

Rule 55 excludes applications for leave to appeal, stays, injunctions and striking-out from single-judge jurisdiction. The Court held the single judge prudently restricted himself to the enlargement-of-time prayer, since a full bench would in any event have had to remit the rule 4 prayer back to a single judge.

p. 5
03

Exercise of discretion on extension of time

Holding

The single judge properly considered the applicable principles for extension of time and properly exercised his discretion; the reference could not fault the ruling.

Reasoning

The Court found the single judge had addressed the guiding principles, referred to decisions of this Court and the Supreme Court on extension of time, and dealt cautiously with the question whether a copy of the ruling was mandatory, correctly leaving that to the full bench.

p. 5

Legal principles established

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  • A reference is not an appeal; a full bench may only interfere with a single judge's exercise of discretion under rule 4 where the judge took into account an irrelevant factor, failed to take into account a relevant factor, misapprehended a point of law or fact, or where the decision is plainly wrong
  • A single judge hearing an omnibus application properly confines himself to the prayers within his jurisdiction under rule 55, and refers applications for leave to appeal to a full bench

Court orders

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  1. 1.The reference dated 8th July 2021 is dismissed
  2. 2.Costs of the reference awarded to the applicant, Geothermal Development Company

Authorities

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Legislation

  • Court of Appeal Rules, 2010Rule 55(1)(b)
  • Court of Appeal Rules, 2022Rule 57(1)(b)
  • Court of Appeal Rules, 2022Rule 4
  • Court of Appeal Rules, 2022Rules 45(3) and (4)
  • Court of Appeal Rules, 2022Rule 55
  • Court of Appeal Rules, 2022Rule 39(b)
  • Court of Appeal Rules (as invoked before the single judge)Rules 43(3) and (4)
  • Arbitration ActSection 35(3)
  • Arbitration ActSection 35
  • Arbitration ActSection 34
  • Arbitration ActSection 32A

Cases cited (3)

  • Rajput vs. Barclays Bank of Kenya Limited & 3 others
    (2004) 2 KLR
  • Kimathi & Another vs. Muriuki & 12
    [2023] KECA 666 (KLR) (Ruling)
  • Songa Ogoda & Assocaites vs. University of Nairobi
    (2023) KECA 57 KLR
On appeal from
Court of Appeal (decision of a single judge, Laibuta, JA)
Not stated
Jurisdiction invoked
Rule 57(1)(b) of the Court of Appeal Rules, 2022 (formerly rule 55(1)(b) of the Court of Appeal Rules, 2010) - reference against a decision of a single judge

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, "Geothermal Development Company v Lantech Africa Limited (Civil Application E029 of 2021) [2024] KECA 269 (KLR)", Case Analysis (2024). Not stated in the judgment (reference dated 8th July 2021 against ruling of Laibuta, JA). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/269/eng@2024-03-08

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