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Court of AppealPartially AllowedNot stated in the judgment (application dated 28th July 2025)· [2026] KECA 1178 (KLR)

Exquisite Services Ltd v Mwakuzimu & 4 others (Civil Application E065 of 2025) [2026] KECA 1178 (KLR)

Court of Appeal
19 June 2026
SOS. O. Okong'o
1,935 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal gave a party 14 more days to seek permission to appeal an arbitration ruling, but only a full bench can decide that permission.

What this practically means

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Executive summary

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This was an application before a single judge of the Court of Appeal at Mombasa seeking extension of time and leave to appeal against a ruling of the Environment and Land Court at Kwale (L. L. Naikuni J.) dated 28th May 2025 in ELC Case No. 104 of 2021. The ELC had dismissed two applications by the Applicant: one under section 35 of the Arbitration Act to set aside an arbitral award of 11th June 2024, on grounds including bias and non-disclosure, and another seeking joinder of the 5th Respondent. The judge restated the settled position, drawing on the Supreme Court's decision in Kampala International University and Nyutu Agrovet, that appeals against High Court section 35 setting-aside decisions lie to the Court of Appeal only with leave, granted in only narrow, grave cases. The leave application had to be filed within 14 days under rule 41(1)(b)(i). The judge held that under rule 55(2)(a) a single judge cannot hear a leave application, so only the extension-of-time limb fell for determination. Applying the Salat principles, the judge found the Applicant's explanation - that its timely leave application was rejected by the registry for want of indexing and pagination, with reasons communicated only on 18th July 2025 - reasonable and uncontroverted, the 4th Respondent having filed no replying affidavit. The application was filed without unreasonable delay and no prejudice was shown. Time was extended by 14 days for the Applicant to file a fresh leave application for consideration by the full bench, with each party bearing its own costs. The decision below was not disturbed; the ruling only opens the gate to a leave application.

Key legal issues

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01

Whether the Applicant was entitled to an extension of time to file an application for leave to appeal

Holding

The Applicant established a reasonable explanation for the delay - its timely leave application was rejected by the registry for want of indexing and pagination, and the rejection reasons were not communicated until 18th July 2025; the application was brought without unreasonable delay and no prejudice was shown by the Respondents.

Reasoning

Applying the Salat principles, extension of time is an equitable remedy for a deserving party, and the applicant bears the burden of explaining the delay. The Applicant produced evidence that it filed the initial leave application within the 14 days prescribed by rule 41(1)(b)(i), and its explanation was uncontroverted, the 4th Respondent having filed no replying affidavit. The court found reasonable explanation, no unreasonable delay, and no prejudice to the Respondents.

p. 4
02

Whether the single judge had jurisdiction to grant leave to appeal

Holding

No; the second limb seeking leave itself was beyond a single judge's powers and could only be considered by the full bench.

Reasoning

Rule 55(2)(a) requires that an application for leave to appeal be heard by more than one judge. The judge therefore confined himself to the extension-of-time limb under rule 4 and directed the Applicant to file a fresh leave application for determination by the full bench.

p. 3

Legal principles established

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  • An appeal against a High Court decision on an application to set aside an arbitral award under section 35 of the Arbitration Act lies to the Court of Appeal only with leave, and leave must be sought from and granted by the Court of Appeal before the appeal is filed
  • Leave to appeal against a section 35 setting-aside decision is only available in the narrow circumstances described in Nyutu Agrovet, where the High Court stepped outside the grounds in section 35 and closed the door of justice
  • An application for leave to appeal cannot be heard by a single judge under rule 55(2)(a)

Court orders

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  1. 1.Extension of time by 14 days from the date of the order within which the Applicant was to file an application for leave to appeal against the ruling and orders of the Environment and Land Court at Kwale (L. L. Naikuni J.) made on 28th May 2025 in ELC Case No. 104 of 2021
  2. 2.The Applicant to file a fresh application for leave to appeal for consideration by the full bench of the Court
  3. 3.Each party to bear its own costs of the application

Authorities

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Legislation

  • Arbitration Act, Chapter 49 Laws of Kenyasection 35
  • Court of Appeal Rules, 2022rule 4
  • Court of Appeal Rules, 2022rule 41(1)(b)(i)
  • Court of Appeal Rules, 2022rules 12, 41, 44, 45 and 49
  • Court of Appeal Rules, 2022rule 55(2)(a)

Cases cited (3)

  • Kampala International University vs. Housing Finance Company Limited
    Petition No. 34(E035) of 2022, [2024] KESC 11 KLR
  • Nyutu Agrovet Case
  • Nicholas Kiptoo Arap Korir Salat vs. Independent Electoral and Boundaries Commission & 7 Others
    (2014) eKLR
On appeal from
Environment and Land Court at Kwale
ELC Case No. 104 of 2021
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules, 2022 (extension of time); rules 12, 41, 44, 45 and 49

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, "Exquisite Services Ltd v Mwakuzimu & 4 others (Civil Application E065 of 2025) [2026] KECA 1178 (KLR)", Case Analysis (2026). Not stated in the judgment (application dated 28th July 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1178/eng@2026-06-19

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