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ELCAllowedEnvironment & Land Case 248 of 2018· [2023] KEELC 17048 (KLR)

Jitihada Furniture Centre Ltd v Anwar

Environment and Land Court
20 April 2023
566 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court allowed a company permission to appeal an arbitration ruling, but only if it files its appeal within 14 days.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Nairobi (LN Mbugua, J) determined an application dated 9.3.2022 by Jitihada Furniture Centre Ltd seeking leave to appeal the court's ruling of 23.2.2022, which had dismissed the applicant's application dated 10.3.2021 to set aside an arbitral award published on 14.12.2020. The applicant, through its managing director Ally I. Mwangi's supporting affidavit, contended that without leave of the court it was not entitled to lodge a notice of appeal, relying on Peter Nyaga Muvake v Joseph Mutunga, the Ketraco v Instalaciones Inabensa decision, and Kenya Union of Savings & Credit Co-operative Limited v Onsando Osiemo. The respondent, Asad Anwar, opposed via a replying affidavit dated 25.11.2022, invoking sections 35 and 39 of the Arbitration Act to argue there was no right of appeal from a High Court decision on an arbitral award absent party agreement. The court held that having dismissed the setting-aside application, it was functus officio in the dispute and could not reconsider whether the arbitral tribunal exceeded its mandate. It found the applicant's cited cases applicable, holding that the applicant could not appeal without leave under section 75 of the Civil Procedure Act and Order 42 of the Civil Procedure Rules, and that the validity of the appeal could only be canvassed once the appeal came into existence. The application was allowed with costs to the respondent, and the notice of appeal was to be lodged within 14 days, failing which the leave would lapse.

Key legal issues

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01

Whether leave of the court is required to appeal the ruling dismissing the application to set aside the arbitral award

Holding

Leave was granted; the applicant could not lodge a notice of appeal without leave of the court, and the cases cited by the applicant were found applicable.

Reasoning

The court noted the arbitral award published on 14.12.2020 and its own ruling of 23.2.2022 dismissing the application to set it aside. It held that it was functus officio regarding the dispute, that the applicant could not appeal by dint of section 75 of the Civil Procedure Act and Order 42 of the Civil Procedure Rules without leave, and that the applicant's cited authorities applied.

p. 2
02

Whether the court could revisit the validity of the arbitral tribunal's mandate

Holding

The court could not; having dismissed the setting-aside application, it was functus officio in respect of the dispute.

Reasoning

The court observed that an arbitral award was published on 14.12.2020 and the applicant's application dated 10.3.2021 to set it aside was dismissed on 23.2.2022. Consequently the court could not purport to consider whether the arbitral tribunal had overstepped its mandate, as it was functus officio in the dispute between the parties.

p. 2

Legal principles established

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  • Where a court has dismissed an application to set aside an arbitral award, it becomes functus officio in respect of the dispute and cannot revisit questions such as whether the tribunal exceeded its mandate.
  • Leave is required before lodging an appeal against a decision on an application to set aside an arbitral award, and the validity of the appeal can only be canvassed once the appeal comes into existence.

Court orders

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  1. 1.The application dated 9.3.2022 is allowed
  2. 2.The Respondent/defendant is awarded the costs of the application
  3. 3.The Notice of Appeal to be lodged within 14 days from the date of delivery of the ruling, failing which the leave granted shall lapse

Authorities

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Legislation

  • Arbitration ActSection 35
  • Arbitration ActSection 39
  • Civil Procedure ActSection 75
  • Civil Procedure RulesOrder 42

Cases cited (3)

  • Peter Nyaga Muvake v Joseph Mutunga
    [2015] eKLR

    Requirement of leave to appeal

  • Kenya Electricity Transmission Co. Limited (Ketraco) v Instalaciones Inabensa S.A
    (Miscellaneous Application E56 of 2021) [2021] KECA 151 (KLR) (19 November 221) (Ruling)

    Requirement of leave to appeal

  • Kenya Union of Savings & Credit Co-operative Limited v Onsando Osiemo T/A Onsando Osiemo & Company Advocates
    [2014] eKLR

    Requirement of leave to appeal

Jurisdiction invoked
Inherent jurisdiction to grant leave to appeal under section 75 of the Civil Procedure Act and Order 42 of the Civil Procedure Rules

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, "Jitihada Furniture Centre Ltd v Anwar", Case Analysis (2023). Environment & Land Case 248 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17048/eng@2023-04-20

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