Sikawa v Ere Build Systems Ltd

2. The application is supported by the adavit of Keneth Sikawa led herewith and grounds on the face of the application as follows: (1) The Arbitrator, Mr. Charles J Mwaura, QS published an award dated 30th November, 2022 awarding the applicant the following reliefs against the Respondent herein; a. An award of Kshs.3,565,518.45. b. The above payment in the amount of Kenya Shillings Three Million Five Hundred and Sixty- ve Thousand Five Hundred and Eighteen and Forty-ve Cents only (Kshs.3,565,518.45) be paid in full as nal settlement of the claimant's claim against the Respondent. c. Any amount remaining unpaid after 30 days have lapsed from the date of delivery of the award shall attract simple interest of 13% per annum. d. Each party bears its costs of the reference. 3. Following the publication of the award, both parties led applications at the High Court, Commercial and Tax Division, with the respondent ling a notice of motion application dated 22nd February, 2023 seeking to set aside the award of 30th November, 2022 under section 35 of the Arbitration Act, and supported by the adavit of Peter Ole Saikah sworn on even date. 4. On the other hand, the applicant herein led a chamber summons application dated 10th March, 2023 under section 36 of the Arbitration Act, supported by the adavit of the applicant, sworn on the even date. The applicant herein sought to enforce the award of 30th November, 2022. 5. Upon considering the two applications dated 22nd February, 2023 and 10th March, 2023, the Judge rendered a ruling on the 8th May, 2024 nding as follows: “ I therefore nd merit in the notice of motion dated 22nd February, 2023 in terms that the Award published on 30th November, 2022 by Charles J. Mwaura, QS ("the arbitrator") is set aside. Consequently, chamber summons dated 10th March 2023 seeking to enforce the award is dismissed. Each party shall bear its own costs.” 6. The applicant is aggrieved by the decision of D. Majanja, J. of 8th May, 2024 and has instructed the rm of Messrs. Macharia-Mwangi & Njeru Advocates to seek for leave to le a notice of appeal and a record of appeal out of time. 7. Let me state from the onset that the only part of the application I will consider is for extension of time to le the notice and record of appeal out of time. The rest of the application will be heard by a full bench of this Court. 8. In the supporting adavit sworn by the applicant he avers that the previous counsel is to be blamed for failure to inform him of the outcome of the ruling timeously and that he received the information much after 28th May, 2024, which is the time the court communicated. He explained that he lives in the United States of America and that it took him long to get counsel to represent him which in turn led to delay in getting timely advice of his legal options following the decision, and the delay in ling the notice of appeal and the record of appeal. 9. The applicant avers that the delay in ling the present application was not deliberate on his part and that in any event it was not inordinate. He avers that no prejudice will be suered by the respondent should the application be allowed. Reliance has been placed on the Supreme Court decision in Synergy https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1828/eng@2026-09-25 2

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Industrial Court Limited vs. Cape Holdings Limited [2019] eKLR where that Court stated that Courts have inherent jurisdiction to grant leave and address miscarriage of justice. 10. That the rules of this Honorable Court requires that an applicant ought to have led an application seeking leave to appeal against the decision of the High Court within 14 days which time has since lapsed. 11. The application is opposed by a replying adavit sworn by the Director of the respondent dated 9th August, 2024. He avers that the applicant’s delay in lodging an appeal is certainly inordinate, deliberate and indolent as it was clearly occasioned by events within his control; that whereas the reasons for failing to le the appeal is attributed to a disagreement between the applicant and his previous advocate and his lack of knowledge of the ruling, these allegations are entirely unsubstantiated and do not amount to a reasonable explanation. He avers that the applicant did not avail communication of follow-ups between him made to the registry after the alleged disagreement with his previous advocates, and averred that the previous advocate had participated throughout the conduct of the trial court’s proceedings, hearing and submissions and religiously updated the applicant and his family as he, the respondent demonstrated through emails attached to his adavit. 12. The matter was heard through written submissions led with the court. Each party led their respective submissions, which I have considered. On the applicant’s part, he placed reliance on several cases including the case of in Leo Sila Mutiso Vs. Rose Hellen Wangari, [1999] 2 EA 231, for the proposition that the court should take into account factors, such as the length of the delay, the reason for the delay, the likelihood of the success of the appeal and the degree of prejudice the respondents stands to suer if the application is allowed. The applicant urges that the delay was caused because he was based abroad, a factual situation which has not been controverted. He also urges that the delay is not inordinate considering the date of the ruling was 8th May, 2024, and the application led on 30th July, 2024. 13. The respondent continued to oppose the application and urged that the applicant has not satised the grounds for a grant of the orders sought in the application due mainly because he has not substantiated why he failed to le an appeal within the required time. He then delved into the area of merits of the substantive application which is not meant for consideration at this stage. 14. I have considered the application, the grounds upon which it is based, the submissions and the cases relied on. The power of this Court to extend time is provided for under rule 4 of the Rules. Rule 4 provides that; “ The Court may, on such terms as may be just, by order, extend the time limited by these Rules, or by any decision of the Court or of a superior court, for the doing of any act authorized or required by these Rules, whether before or after the doing of the act, and a reference in these Rules to any such time shall be construed as a reference to that time as extended.” 15. Rule 4 does not prescribe the factors to be considered in an application for extension of time. However, these principles are well set out in numerous decisions of this Court for instance in Fakir Mohamed vs. Joseph Mugambi & 2 Others [2005] KECA 340 (KLR) it was stated as follows: “ The exercise of this Court’s discretion under rule 4 has followed a well-beaten path since the structure of “sucient reason” was removed by amendment in 1985. As it is unfettered, there is no limit to the number of factors the court would consider so long as they are relevant. The period of delay, the reason for the delay, (possibly) the chances of the appeal succeeding if the application is granted, the degree of prejudice to the respondent if the https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1828/eng@2026-09-25 3

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application is granted, the eect of delay on public administration, the importance of compliance with time limits, the resources of the parties, whether the matter raises issues of public importance- are all relevant but not exhaustive factors: See Mutiso vs. Mwangi Civil Appl. NAI. 255 of 1997 (ur), Mwangi vs. Kenya Airways Ltd (2003) KLR 486, Major Joseph Mwereri Igweta vs. Murika M’Ethare & Attorney General Civil Appl. NAI 8/2000 (ur) and Murai Vs. Wainaina (No 4) (1982) KLR 38.” 16. The impugned judgment was delivered on 8th May, 2024 and as per rule 77(2) of the Rules, the applicant was required to lodge his notice of appeal within fourteen (14) days after the date of the judgment, that is, by 25th May, 2024. The notice of appeal was not lodged, and part of the prayers in this application is for leave to le it out of time. The delay involved is 84 days between the date of the ruling intended to be appealed, that is 8th May, 2024 and 30th July, 2024 when this application was led. The reason given for the delay was that the applicant lives in the US and was away at the time the ruling was delivered. He said he got to learn of the ruling long past the date by which the notice of appeal should have been led. He also explained that it took him time to instruct a new advocate and to get advice on his rights. The respondent brought in the idea that the applicant fell out with his previous advocate and sought to prove he was an active participatory counsel who kept all the parties informed of the progress of the case, posting some of the communication by him. He then challenged the applicant to substantiate the reason for the delay. 17. The question is whether the reasons given were satisfactory. As observed from the submissions by both sides, it is clear that the respondent does not contest the fact of the applicant being based in the US. Further the fact the applicant’s advocate was hands on throughout the past processes in the matter does not mean he could not have failed to communicate the delicate matter of the delivery of the impugned ruling. Furthermore, it is for the Court to decide if it is satised with the reasons given and explanations made about the delay. 18. It is trite that extension of time was not a right of a party. It is also trite that it is an equitable remedy that was only available to a deserving party at the discretion of the court. Further, a party who seeks extension of time has the burden of laying a basis for it to the satisfaction of the court. Taking the explanation given by the applicant, and considering the principles applicable, I nd that the applicant has given satisfactory explanation for the cause of the delay. 19. I have additionally considered the level of prejudice the respondent stands to suer if the application were to be granted. The appeal intended to be led rotates around a nancial award. Apart from being kept from fruits of the award and eventual decree, the delay is capable of being quantied and compensated to cover for whatever the respondent may have lost. I see no serious prejudice to the respondent in the circumstances. 20. I am aware that the power to extend time is discretional and unfettered. I have applied the requisite principles that are applicable in determining such an application. Having done so, I nd the application merited. The result of the application is as follows: (1) The application dated 30th July, 2024 is merited and the same be and is hereby allowed; (2) The applicant is to granted leave to le the notice of appeal and the record of appeal out of time against the ruling of D. Majanja, J. in Misc. Arbitration Cause E017 and E019 of 2023, dated on the 8th May, 2024, within 14 days of the date of this ruling, and to serve both the notice and the record of appeal upon the respondent within 21 days from the date of such service; (3) The applicant is granted extension of time within which to le an application seeking leave to appeal against the decision of D. Majanja, J. in Misc. Arbitration Cause No. E017 and E019 https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1828/eng@2026-09-25 4

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of 2023 delivered on the 8th May, 2024, and the same should be led within 21 days from the date of this ruling; (4) The costs of this application shall be to the respondent. DATED AND DELIVERED AT NAIROBI THIS 25TH DAY OF SEPTEMBER, 2026 J. LESIIT …………………………… JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1828/eng@2026-09-25 5

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