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Court of AppealStruck OutCourt of Appeal application arising from High Court Misc Civil Application No. 671 of 2019

Vishnu Builders and Developers Limited v Maow Holding Limited (Civil Application E608 of 2021) [2023] KECA 1571 (KLR)

Court of Appeal of Kenya
22 June 2023
DMD. K. MusingaKLDr. K. I. LaibutaGNG. W. Ngenye-Macharia
1,436 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal struck out an arbitration-related appeal application filed late, confirming the 14-day filing deadline cannot be extended for any reason.

What this practically means

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Executive summary

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The applicant sought leave of the Court of Appeal, under Article 164(3)(a) of the Constitution, section 39(3)(b) of the Arbitration Act and rule 39 of the Court of Appeal Rules, 2010, to appeal against a ruling of Njuguna, J delivered on 15th October 2020 in High Court Misc Civil Application No. 671 of 2019 setting aside an arbitral award of Kshs.28,831,562.50 plus interest at 14% per annum. Leave had first been sought in the High Court, where Mbogholi Msagha, J ruled on 27th July 2021 that jurisdiction over such an application lay exclusively with the Court of Appeal. The present application was filed on 1st October 2021. The court held that under rule 39(b) the 14-day period for filing runs from the High Court's refusal of leave, and that the application, filed well outside that period, was out of time. Rule 39(b) was characterised as mandatory, leaving no room for extension of time, and Article 159(2)(d) of the Constitution was held not to be a panacea for all procedural shortfalls, so the delay was not a mere procedural technicality. The court also held that the respondent's Grounds of Opposition were incompetent because rule 50 requires responses to a notice of motion to be by affidavit in reply. The court struck out the notice of motion with costs to the respondent, without reaching the merits of the proposed appeal or the applicant's reliance on Nyutu Agrovet and Synergy Industrial Credit. The applicant's arguments on the substantive merits of the intended appeal were therefore left undetermined.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Court has jurisdiction to entertain an application for leave to appeal filed outside the 14-day period prescribed by rule 39(b) of the Court of Appeal Rules, 2010
  2. 2.Whether the respondent's Grounds of Opposition, filed without an affidavit in reply, were competent
  3. 3.Whether Article 159(2)(d) of the Constitution can cure the late filing of the application

Key legal issues

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01

Whether the Court had jurisdiction to determine an out-of-time application for leave to appeal under rule 39(b)

Holding

The application was incompetent; the Court lacked jurisdiction to determine it on the merits and struck it out.

Reasoning

The High Court (Mbogholi Msagha, J) refused leave on 27th July 2021, so the 14-day period ran from that date. The application was filed on 1st October 2021, well outside the period. Rule 39(b) is mandatory and admits no extension, and Article 159(2)(d) cannot remedy non-compliance with a jurisdictional condition. Where the jurisdictional fact is absent, the Court cannot entertain the application regardless of its merits.

p. 3
02

Competence of the respondent's Grounds of Opposition

Holding

The Grounds of Opposition dated 12th April 2023 were incompetent because responses to a notice of motion must be made by way of affidavit in reply under rule 50 of the Court of Appeal Rules, 2010.

Reasoning

The court applied rule 50, which requires any response to a notice of motion to be by affidavit in reply. Since the respondent filed only Grounds of Opposition, those grounds were disregarded as having no value or weight. This did not affect the outcome, as the application failed on jurisdiction.

p. 2

Legal principles established

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  • An application for leave to appeal, where leave has been refused by the High Court, must be filed in the Court of Appeal within 14 days of the refusal; the period is mandatory and the Court has no jurisdiction over an application filed outside it.
  • Article 159(2)(d) of the Constitution is not a panacea for all procedural shortfalls and cannot cure non-compliance with a mandatory jurisdictional time limit.
  • Jurisdiction under rule 39(b) is an original jurisdiction, not an appeal from, review of, or reference against the High Court's refusal of leave.

Court orders

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  1. 1.Strike out the applicant's Notice of Motion dated 1st October 2021
  2. 2.Costs of the application to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

DM
majority
KL
majority
GN
majority
On appeal from
High Court of Kenya
Misc Civil Application No. 671 of 2019
Jurisdiction invoked
Article 164(3)(a) of the Constitution; section 39(3)(b) of the Arbitration Act; rule 39 of the Court of Appeal Rules, 2010

Relief refused

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Leave to file an appeal against the ruling of Njuguna, J delivered on 15th October 2020 setting aside the arbitral award

The application was filed out of time, beyond the 14 days prescribed by rule 39(b), and the Court is therefore without jurisdiction to consider it on the merits

p. 3

Costs

costs to the respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Rule 39(b) is, in our view, couched in mandatory terms and does not provide any wriggle room for extension of time or consideration of an application filed beyond the 14 days’ period.
p. 3Mandatory nature of the 14-day period under rule 39(b)
It has been held in a plethora of decisions that Article 159(2) (d) of the Constitution is not a panacea for all procedural short falls as not all procedural deficiencies can be remedied by it.
p. 3Limits of Article 159(2)(d) against procedural technicalities
Accordingly, we hereby strike out the applicant’s Notice of Motion dated 1st October 2021 with costs to the respondent.
p. 3Final orders - striking out and costs

Issues in the judgment

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minor

Counsel names inconsistent: Ms. Mayaka appears for the applicant at the hearing, but in the rejoinder 'Ms. Mugoya' concedes the application was filed out of time, without explanation of the change or the relationship between the two names.

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, "Vishnu Builders and Developers Limited v Maow Holding Limited (Civil Application E608 of 2021) [2023] KECA 1571 (KLR)", Case Analysis (2023). Court of Appeal application arising from High Court Misc Civil Application No. 671 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1571/eng@2023-06-22

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