SBM Bank (Kenya) Limited v Afrasia Bank Limited (Civil Application E359 of 2025) [2025] KECA 1652 (KLR)
The bottom line
#Kenya's Court of Appeal allowed a late appeal against an arbitration ruling, confirming that striking out a faulty application doesn't bar a properly drafted second attempt.
What this practically means
#Executive summary
#Key legal issues
#Whether the application was res judicata following the striking out of the earlier omnibus application
No. The earlier application dated 12th March 2025 was struck out, not determined on the merits, for combining prayers amenable to a single judge with a prayer for leave to appeal reserved for the full bench.
W. Karanja, JA struck out the earlier application solely for being omnibus in nature, comprising prayers within a single judge's competence and one requiring a full bench. Since the applicant's claim for extension of time was never determined on its merits, there is no prior final decision capable of founding res judicata. The judge respectfully endorsed the correctness of the striking-out but refused to treat it as a merits determination.
Whether the delay was sufficiently explained to warrant extension of time
Yes. The applicant was diligent and not indolent; its procedural errors, readily admitted, did not disentitle it to the discretion.
The applicant filed its appeal in time, unaware that an amended order had closed the file and introduced a leave requirement. After the appeal was struck out on 28th February 2025, it applied for extension within 14 days; after that application was struck out on 9th June 2025, it moved again within five days. The court found the reasons plausible, the delay satisfactorily explained, and declined to punish admitted procedural missteps, preferring to do justice between the parties.
Whether time can be extended where leave to appeal has not yet been granted
Yes. Rule 77(4) of the Court of Appeal Rules removes the need to obtain leave or certification before lodging a notice of appeal where the appeal lies only with leave or on a certificate.
The respondent argued that extending time before leave is granted is incoherent, particularly given the 60-day window under rule 84(1) for appeals under section 39(4) of the Arbitration Act. The judge answered the objection by invoking rule 77(4), which provides that a notice of appeal may be lodged before obtaining leave or a certificate of general public importance, thereby accommodating the sequencing of extension, notice, and subsequent leave application.
Legal principles established
#- Extension of time under rule 4 is a judicial discretion guided by the Salat parameters, not exercised on whim, caprice or sympathy.
- An application struck out for being procedurally omnibus is not decided on the merits and does not bar a subsequent properly framed application on res judicata grounds.
- Under rule 77(4) of the Court of Appeal Rules, it is not necessary to obtain leave or a certificate before lodging a notice of appeal where an appeal lies only with leave or on a certificate.
- The Court will not shut out a diligent litigant from justice merely because of procedural mistakes.
Court orders
#- 1.Extension of time within which the applicant may file and serve the Notice of Appeal on the respondent with respect to the judgment and decree of 21st July 2022
- 2.The Notice of Appeal attached to the application deemed duly filed and served upon extension
- 3.Extension of time within which the applicant may apply for leave to appeal to the Court of Appeal
- 4.The applicant shall file and serve the application for leave to appeal within seven (7) days
- 5.Costs shall abide the outcome of the appeal
- On appeal from
- High Court of Kenya
- Misc. Application No. E386 of 2021
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (extension of time); section 39(4) of the Arbitration Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "SBM Bank (Kenya) Limited v Afrasia Bank Limited (Civil Application E359 of 2025) [2025] KECA 1652 (KLR)", Case Analysis (2025). Miscellaneous Application dated 13th June 2025 (arising from High Court Misc. Application No. E386 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1652/eng@2025-10-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.