Geothermal Development Company v Lantech Africa Limited
The bottom line
#Kenya's Court of Appeal allowed Geothermal Development Company to challenge a High Court ruling enforcing an arbitral award, because the case raises an unsettled legal question about time limits.
What this practically means
#Executive summary
#Key legal issues
#Whether leave to appeal should be granted against the High Court ruling striking out the application to set aside the arbitral award and allowing its adoption and enforcement
Leave was granted because the intended appeal raises considerable questions of law and public importance concerning the computation of the three-month limitation period under section 35(3) of the Arbitration Act where a party first applies under section 34 for correction of the award
The Court noted that leave to appeal in arbitration matters is discretionary and the threshold is high, requiring demonstration that the High Court's order is erroneous and the intended appeal likely to succeed. However, both parties conceded that the question of when time begins to run under section 35(3) where a section 34 correction application has been made raises serious jurisprudential questions. The Court agreed the issue deserves interrogation by the Court and should be canvassed, considered and rested.
Whether the applicant's conduct in filing multiple applications, suits, and a fresh High Court suit should bar the grant of leave
The multiplicity of applications and suits was not per se a bar, and the pending fresh suit's facts were not before the Court; nor did commencement of execution defeat the application
Counsel for the applicant admitted filing several applications but justified it as arising from desperation. The Court held that such conduct would not per se bar consideration on merits. Regarding the fresh suit, the Court was not privy to its facts. Execution and recovery of the award amounts were held not to be grounds, by themselves, to deny a deserving applicant leave.
Whether delay in filing the application defeated it
Delay could not be revisited because the applicant had already been granted leave to file out of time under rule 4 by Laibuta, J.A.
The respondent raised delay as a ground of opposition, but the record showed that a judge of the Court had already exercised discretion under rule 4 of the Court of Appeal Rules to extend time. That determination could not be re-opened by the same Court in the same application, so the delay objection fell away.
Legal principles established
#- There is no automatic right of appeal to the Court of Appeal from a High Court decision arising from an arbitration award; leave must first be sought and obtained, and the threshold is relatively high
- The Court of Appeal has residual jurisdiction to entertain an appeal under section 35 of the Arbitration Act only in exceptional and limited circumstances where there is need to correct palpable injustice, per the Supreme Court's parameters in Nyutu Agrovet
- Judicial intervention in arbitral proceedings is limited by section 10 of the Arbitration Act, reflecting the principle of finality of arbitration
- The commencement of execution of an arbitral award is not by itself a ground to deny a deserving applicant leave to appeal
- Filing several applications or suits in various courts is not per se a bar to consideration of an application for leave on its merits
Court orders
#- 1.The application for leave to appeal is allowed
- 2.Leave granted to the applicant to appeal to the Court of Appeal against the ruling and order delivered on 16th December 2020
- 3.Leave granted on condition that the intended appeal be filed within thirty (30) days from the date of the order, failing which the leave shall automatically lapse
- 4.Costs of the application to abide the outcome of the intended appeal
- On appeal from
- High Court of Kenya at Nairobi
- Consolidated High Court Misc. Civil Application Numbers 776 and 779 all of 2020
- Jurisdiction invoked
- Section 75(1) of the Civil Procedure Act; sections 3, 3A & 3B of the Appellate Jurisdiction Act; Rules 4, 39(b), 42 & 43 of the Court of Appeal Rules - an application for leave to appeal against a High Court decision arising from an arbitral award, there being no automatic right of appeal
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kiama v Vaal Real Estate Limited & another (Miscellaneous Civil Application E115 of 2024) [2025] KEELC 8449 (KLR)[2025] KEELC 8449 (KLR)4 Dec 2025applied
- Cytonn Investments Management Plc v Margaret Mary Njuguna[2025] KECA 1317 (KLR)18 Jul 2025
Cite this brief
#Cite this brief
Caselaw, "Geothermal Development Company v Lantech Africa Limited", Case Analysis (2024). Civil Application No. Nai. E025 of 2021 (implied from Notice of Motion dated 29th January 2021; number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/981/eng@2024-07-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.