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Court of AppealAllowedMiscellaneous Application dated 13th June 2025 (arising from High Court Misc. Application No. E386 of 2021)· [2025] KECA 1652 (KLR)

SBM Bank (Kenya) Limited v Afrasia Bank Limited (Civil Application E359 of 2025) [2025] KECA 1652 (KLR)

Court of Appeal of Kenya
9 October 2025
2,219 words in judgment
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The bottom line

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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

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Executive summary

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This is a single-judge ruling of the Court of Appeal, Nairobi, delivered by P.O. Kiage, JA on 9th October 2025, on a Notice of Motion dated 13th June 2025 seeking extension of time to file and serve a Notice of Appeal, and to apply for leave to appeal, against the judgment and decree of Hon. Lady Justice Wilfrida Okwany delivered on 21st July 2022 in High Court Misc. Application No. E386 of 2021, an arbitration-related matter. The application was opposed on grounds of res judicata, a triplicity of notices of appeal, and the contention that the 60-day period under rule 84(1) of the Court of Appeal Rules for appeals under section 39(4) of the Arbitration Act had lapsed and could not be revived, with reliance placed on Salat v IEBC and the English case of Ali Allawi And Terna Bahrain. The judge rejected the res judicata objection, holding that W. Karanja, JA's ruling of 9th June 2025 struck out the earlier omnibus application without determining it on the merits. On the merits, applying the Salat principles, the court found the applicant diligent and not indolent: its appeal was filed in time but struck out for lack of certification, and it moved promptly thereafter, with its missteps being admitted procedural errors. The judge held that rule 77(4) dispenses with the need to obtain leave or a certificate before lodging a notice of appeal. The application was allowed as prayed, with the applicant directed to file and serve the application for leave to appeal within seven days, and costs ordered to abide the outcome of the appeal.

Key legal issues

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01

Whether the application was res judicata following the striking out of the earlier omnibus application

Holding

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.

Reasoning

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.

p. 4
02

Whether the delay was sufficiently explained to warrant extension of time

Holding

Yes. The applicant was diligent and not indolent; its procedural errors, readily admitted, did not disentitle it to the discretion.

Reasoning

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.

p. 4
03

Whether time can be extended where leave to appeal has not yet been granted

Holding

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.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 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. 2.The Notice of Appeal attached to the application deemed duly filed and served upon extension
  3. 3.Extension of time within which the applicant may apply for leave to appeal to the Court of Appeal
  4. 4.The applicant shall file and serve the application for leave to appeal within seven (7) days
  5. 5.Costs shall abide the outcome of the appeal

Authorities

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Legislation

  • Arbitration Actsection 39(4)
  • Court of Appeal Rulesrule 4
  • Court of Appeal Rulesrule 55(1)
  • Court of Appeal Rulesrule 77(4)
  • Court of Appeal Rulesrule 84(1)
  • Civil Procedure ActNot specified

Cases cited (3)

  • Salat v. Independent Electoral And Boundaries Commission & 7 others
    [2014] KESC 12 (KLR)
  • Nicholas Kiptoo Arap Korir Salat v. Independent Electoral And Boundaries Commission & 7 Others
    supra
  • Ali Allawi And Terna Bahrain
    [2019] EWHC 430
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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.