https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1178

Exquisite Services Ltd v Mwakuzimu & 4 others (Civil Application E065 of 2025) [2026] KECA 1178 (KLR) (19 June 2026) (Ruling) Neutral citation: [2026] KECA 1178 (KLR) Republic of Kenya In the Court of Appeal at Mombasa Civil Application E065 of 2025 SO Okong'o, JA June 19, 2026 Between Exquisite Services Limited Applicant and Mwashime Ali Mwakuzimu 1st Respondent Wycliffe Gagai Madaga 2nd Respondent Salimu Saidi Rachitu 3rd Respondent Okanga & Company Advocates 4th Respondent Mogaka, Omwenga, Mabeya & Company Advocates 5th Respondent (An application for extension of time to file an application for leave to appeal, and for leave to appeal against the ruling and orders of the Environment and Land Court at Kwale (Naikuni J.) delivered on 28th May 2025 in ELC No. E104 of 2021) Ruling 1.The Applicant filed an application dated 6th September 2024 before the Environment and Land Court (ELC) under section 35 of the Arbitration Act, Chapter 49 Laws of Kenya, seeking to set aside the arbitral award dated 11th June 2024 issued by the sole arbitrator, Eric Nyongesa Wafula. In the award, the arbitrator had allowed the Applicant’s claim against the 1st, 2nd and 3rd Respondents; and dismissed the claim against the 4th Respondent, while no orders were made in respect of the claim against the 5th Respondent. The Applicant challenged the award on various grounds, among them that the arbitrator was biased against the Applicant, and that the award was tainted by non-disclosure of material facts and fraudulent misrepresentation. The Applicant filed a second application dated 23rd January 2025, seeking the joinder of the 5th Respondent as the 5th Defendant in the ELC suit. This second application was also brought on several grounds. 2.The Applicant's two applications were opposed and were heard together. In a ruling dated 28th May 2025, the ELC found no merit in the applications and dismissed them. With regard to the application to set aside the arbitral award, the ELC found that the threshold for setting aside an arbitral award had not been met by the Applicant. Regarding the application seeking the joinder of the 5th Respondent to the ELC suit, the court held that such joinder would serve no purpose. The Applicant was dissatisfied with the said ruling and, on 12th June 2025, filed a notice of its intention to appeal against it to this Court. 3.What is now before me is the Applicant’s application dated 28th July 2025, seeking the following orders:1.Extension of time within which to file an application for leave to appeal against the ruling and orders of the ELC dated 28th May 2025; and2.Leave to appeal against the said ruling and orders. 4.The Applicant’s application was brought under, among others, rules 12, 41, 44, 45 and 49 of the Court of Appeal Rules, 2022. The application was supported by the affidavit and the supplementary affidavit of the Applicant’s learned counsel, Swanya Victor Ogeto, sworn on 28th July 2025 and 8th October 2025, respectively, and was brought on several grounds. The Applicant averred that it filed the application for leave to appeal on 11th June 2025 within the prescribed time but the same was rejected by the Court registry because it was not indexed and paginated; that the reasons for the rejection of the application were not immediately given until 18th July 2025; that the application before the Court was indexed and paginated; that failure to index and paginate the application was an inadvertent mistake on the part of its advocates which should not be used against it; that it had an arguable appeal against the ruling and orders made by the ELC; and that unless the leave sought was granted, he would suffer prejudice in that it would be bound by an arbitral award that was obtained through a flawed and unfair process. 5.The application was opposed by the 4th Respondent through a notice of preliminary objection dated 6th October 2025. The 4th Respondent contended that the Applicant had not given sufficient reason for its failure to file the application for leave within the 14 days prescribed by the rules, and that the application was misconceived and a waste of judicial time. 6.When the application came up for hearing, learned counsel Ms. Gwembere appeared for the Applicant, while none of the Respondents appeared, although they had been served with a hearing notice. The learned counsel for the Applicant relied entirely on her written submissions dated 6th October 2025. She stressed that the initial leave application was filed within time but was rejected for the reasons given earlier in the ruling. 7.I have considered the Applicant’s application together with the supporting affidavits. I have also considered the notice of preliminary objection filed by the 4th Respondent and the parties' written submissions. It is now settled that an appeal against a decision of the High Court arising from an application to set aside an arbitral award under section 35 of the Arbitration Act can only be appealed to this Court with leave of the Court. 8.This position was made clearer by the Supreme Court in Kampala International University vs. Housing Finance Company Limited, Petition No. 34(E035) of 2022, [2024] KESC 11 KLR, where the court stated as follows:“(57)The question as to whether an appeal lies as of right to the Court of Appeal against a decision of the High Court under Section 35 of the Arbitration Act was settled with finality by this Court in the Nyutu Agrovet Case (Supra). The Court stated;‘In concluding on this issue, we agree with the Interested Party to the extent that the only instance that an appeal may lie from the High Court to the Court of Appeal on a determination made under Section 35 is where the High Court, in setting aside an arbitral award, has stepped outside the grounds set out in the said Section and thereby made a decision so grave, so manifestly wrong and which has completely closed the door of justice to either of the parties. This circumscribed and narrow jurisdiction should also be so sparingly exercised that only in the clearest of cases should the Court of Appeal assume jurisdiction.’(58)The Court went on to state that leave would have to be sought from and granted by the Court of Appeal before an intending appellant file the appeal. This mechanism would in the words of the Court:‘be the answer to the process by which frivolous, time wasting and opportunistic appeals may be nipped in the bud and thence bring arbitration proceedings to a swift end.’” 9.Rule 41(1)(b)(i) of the Court of Appeal Rules 2022 (Rules) provides that an application for such leave shall be filed within 14 days of the date of the decision sought to be appealed. The application before the court was filed on 30th July 2025 outside the 14 days prescribed by the Rules. 10.The application has two limbs. The first limb seeks an extension of time to file the application for leave, while the second limb seeks leave to appeal. Under rule 55(2)(a) of the Rules, an application for leave to appeal cannot be heard by a single judge. That means I have no power to address the second limb of the Applicant’s application. I will therefore only determine the limb seeking extension of time within which to file the application for leave. Rule 4 of the Rules provides as follows:“The Court may, on such terms as it thinks just, by order extend the time limited by these Rules, or by any decision of the Court or a superior court, for the doing of any act authorized or required by the 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.” 11.Rule 4 of the Rules gives this court unfettered discretion to grant an extension of time. That discretion must, however, be exercised judiciously. An applicant for extension of time has a duty to lay a proper basis for the order. 12.In the case of Nicholas Kiptoo Arap Korir Salat vs. Independent Electoral and Boundaries Commission & 7 Others (2014) eKLR, the Supreme Court laid down thefollowing general principles on the exercise of discretion in applications for extension of time:“84.From the above caselaw, it is clear that the discretion to extend time is indeed unfettered. It is incumbent upon the applicant to explain the reasons for delay in making the application for extension and whether there are any extenuating circumstances that can enable the court to exercise its discretion in favour of the applicant.85....., we derive the following as the under- lying principles that a court should consider in exercise of such discretion: Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court; A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis; Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court; Whether there will be any prejudice suffered by the respondents if the extension is granted; Whether the application has been brought without undue delay; and Whether in certain cases, like election petitions, public interest should be a consideration for extending time.” 13.The decision sought to be appealed was made on 28th May 2025. The leave application should have been filed by 11th June 2025. The present application was filed on 28th July 2025, 47 days after the expiry of the time within which the application for leave to appeal should have been filed. The Applicant’s explanation for the delay is that it filed the initial application for leave on 11th June 2025 within the 14 days prescribed by the Rules, but it was rejected by the court registry because it was not indexed and paginated. The Applicant has contended that the reason for the rejection of the application was not communicated to it until 18th July 2025, by which time the period within which the said application should have been filed had expired. The Applicant has placed before the court evidence showing that it indeed filed the initial application, which was rejected on 11th June 2025, within the prescribed time. 14.The 4th Respondent, which opposed the application, did not file a replying affidavit. The Applicant’s averment that the delay in the filing of the application for leave on time was occasioned by the rejection of its earlier application for leave for the reason that the same was not indexed and paginated was not controverted. In its submissions, the 4th Respondent contended that the Applicant did not file a Notice of Appeal against the ruling sought to be appealed, and as such, the intended appeal is a non-starter. The Applicant filed a supplementary affidavit, annexing a Notice of Appeal dated 11th June 2025. There was no response to the said affidavit. 15.I am satisfied that the Applicant has given a reasonable explanation for its failure to file the application for leave to appeal within the prescribed time. I also find that the present application was filed without unreasonable delay. The Respondents have not indicated any prejudice they would suffer if the application is allowed. 16.The upshot of the foregoing is that the application before me has merit. The time 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 is extended by 14 days from the date hereof. The Applicant shall file a fresh application for such leave for consideration by the full bench of the Court. Each party shall bear its costs of the application. DATED AND DELIVERED AT MOMBASA THIS 19TH DAY OF JUNE, 2026.S. O. OKONG’O..................................JUDGE OF APPEALI certify that this is the true copy of the originalSignedDEPUTY REGISTRAR