County Government of Kitui v Power Pump Technical Company Limited (Civil Appeal (Application) 171 of 2019) [2024] KECA 1501 (KLR)

The Supreme Court's trilogy arose under section 35 (setting aside). The Court reasoned that ordinarily enforcement and setting-aside applications are consolidated and heard together, so the same logic must govern section 36 where they are determined separately. It also noted that the grounds for setting aside under section 35 and the grounds for refusal to recognise and enforce under section 37 are virtually the same, supporting a uniform approach.

Reading the Supreme Court decisions, the Court held that where the intended appeal falls within the four corners of the circumscribed jurisdiction, leave is granted; otherwise leave is declined. Rule 41 provides two types of leave, and the Nyutu/Synergy jurisdiction falls within the category of appeals lying only with leave of the Court of Appeal itself. The High Court cannot confer that leave, and the leave earlier granted related only to the ruling striking out the setting-aside application.

Under rule 41(1)(b), leave applications must be made within 14 days of the decision. The decision appealed was delivered on 31st October 2018 and the application filed on 8th August 2024. There was no extension of time on record. Even from the settlement of the law by the Supreme Court in December 2020, the delay of nearly four years was unexplained and inordinate.

Fraud and corruption under section 35(2)(vi) are grave matters which, if ignored by the High Court despite clear evidence, could constitute exceptional circumstances. However, an advocate of record has implied general authority to bind the client, and no limitation of that authority was notified to the respondent. The applicant adduced no evidence beyond the bare statement of its former advocate's want of instructions, and the Court cannot infer such serious allegations.

The award was published on 8th December 2017; the respondent applied for amendment in writing on 20th December 2017, within the 30-day period, with notice to the applicant. The parties recorded a consent order and the tribunal approved it on 16th January 2018. The contention that the tribunal lacked jurisdiction to amend flies in the face of section 34, and given the advocate's authority to consent, the applicant cannot claim ignorance of the amended award.

Once the application to set aside was struck out, the supporting affidavit did not survive to respond to the separate enforcement application. The further contention that the High Court ignored the applicant's affidavit, evidence and submissions is nothing more than a challenge to the merits, which the Supreme Court expressly disapproved as a ground for invoking appellate review of arbitral decisions. The circumscribed jurisdiction targets process failures, not the merits.

Following Peter Njuguna Njoroge v. Zipporah Wangui Njuguna and National Industrial Credit Ltd v. Aquinas Francis Wasike, the Court declined to determine the validity of the notice of appeal because the rules expressly provide remedies that the parties had not invoked: the respondent may move against the notice, and the applicant may regularise any irregularity.