Geothermal Development Co. Ltd v Lantech (Africa) Ltd (Civil Application E021 of 2025) [2026] KECA 1216 (KLR) (26 June 2026) (Ruling)

Geothermal Development Co. Ltd v Lantech (Africa) Ltd (Civil Application E021 of 2025) [2026] KECA 1216 (KLR) (26 June 2026) (Ruling) Neutral citation: [2026] KECA 1216 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Application E021 of 2025 DK Musinga, P Lilan & JO Okello, JJA June 26, 2026 Between Geothermal Development Co. Limited Applicant and Lantech (Africa) Limited Respondent (Being an application by the applicant for certification and leave to appeal to the Supreme Court from the Judgment of the Court of Appeal (Karanja, M’Inoti & Achode, JJ.A.) delivered on 28th November 2025 in Civil Appeal No. E637 of 2024 Miscellaneous Application E776 of 2020 ) Ruling 1.By an application dated 17th December 2025, the applicant seeks certification of its intended appeal to the Supreme Court as one raising matters of general public importance within the meaning of Article 163(4)(b) of the Constitution. The intended appeal arises from the judgment of this Court (W. Karanja, M‘Inoti & Achode, JJ.A.) delivered on 28th November 2025 in Civil Appeal No. E637 of 2024 - Geothermal Development Co. Limited vs Lantech (Africa) Limited, where the Court dismissed the applicant’s appeal and upheld the decision of the High Court. To put this ruling into context, it is important that we set out a brief background to the same. 2.On 1st July 2013, the parties herein entered into a contract, pursuant to which the respondent was to provide to the applicant drilling consultancy services at a consideration of USD 26,093,020. After partial performance of the contract, a dispute arose, and it was referred to a sole arbitrator in terms of the parties’ contract. The sole arbitrator heard the dispute and on 12th November 2019 informed the parties that a final award was ready for collection, subject to payment of the balance of his fees. 3.The respondent paid the balance of the arbitrator’s fees and collected the award on 13th March 2020. The respondent applied for correction of the award under section 34 of the Arbitration Act. Subsequently, the award was amended on 20th May 2020. 4.On 3rd June 2020, the respondent filed an application in the High Court, seeking to have the final award as duly corrected, recognized and adopted as a judgment of the court. On the other hand, the applicant filed and application under section 35 of the Act to set aside the final award. The respondent filed a preliminary objection, raising a jurisdictional question to the effect that the provisions of section 35(3) of the Arbitration Act barred the court from entertaining the application. The High Court upheld the preliminary objection and struck out the applicant’s application. The court recognised and enforced the final award as corrected on 20th May 2020. 5.Being dissatisfied with the High Court ruling, the applicant, having been granted leave by this Court, preferred an appeal to the Court. 6.The memorandum of appeal raised 3 substantive questions;(a)whether the striking out of a section 35 application automatically entitles parties to enforcement under section 36 contrary to the distinct statutory safeguards under the section,(b)whether the term ‘receipt’ of an arbitral award under section 35(3) can be equated to the date of notification or publication, as opposed to the literal meaning requiring actual delivery to the parties; and,(c)whether for the purposes of computation of time under section 35(3) of the Arbitration Act, the statutory period ought to run from the date of correction of an award under section 34. That is the appeal whose judgment was delivered by this Court on 28th November 2025 as aforesaid. 7.In the said judgment, the Court upheld the High Court’s finding that “delivery happens when the arbitral tribunal either gives, yields possession, releases or makes available for collection a signed copy of the award to the parties. In this regard therefore, our courts have held that the actual receipt of the signed copy of the award by the party is not necessary and that the award is deemed to have been received by the parties when the arbitral tribunal notifies parties that a signed copy of the award is ready for collection because it is on that date that the tribunal makes the signed copy available for collection by the parties.” 8.The applicant, being dissatisfied by the judgment of this Court, wishes to prefer a further appeal to the Supreme Court and argues that the issue that requires the Supreme Court pronunciation is the proper interpretation and application of sections 32(5) 35(3) 36 and 37 of the Arbitration Act, particularly the meaning of “received” and “delivered” as used in section 35(3) which, it submitted, was wrongly interpreted. 9.The applicant argues that the impugned interpretation diverges from the jurisprudential foundation of the “UNICITRAL” Model Law on International Commercial Arbitration, which Kenya’s Arbitration Act substantially adopts. The applicant argues that a review of UNICITRAL Analytical Commentary, the Guide to Enactment and Interpretation, the travaux préparatoires and the digest of case law, consistently treat the three-month limitation period under the equivalent provision in Article 34(3) as commencing upon actual communication and delivery of the signed awards. 10.The applicant further contends that the intended appeal raises a novel and unsettled question of immediate and practical significance which is: ‘whether dismissal of an application to set aside an award under section 35 of the Arbitration Act automatically entitles enforcement of the award under section 36, without independent scrutiny against the yardsticks under section 37 which safeguards against awards that are contrary to public policy or exceeding the scope of submission’. 11.The applicant argues that in equating dismissal under section 35 with conclusive entitlement to enforcement bypasses the parameters set out in section 37, potentially compromising the integrity of arbitral outcomes and public interest safeguards. The applicant therefore believes that resolution of these issues by the Supreme Court would provide the much needed clarity on the same, resolve potential jurisprudential inconsistencies, and reinforce Kenya’s commitment to pro-arbitration environment that adheres to the UNICITRAL Model Law and upholds the rule of law. 12.The applicant believes that the appeal meets the constitutional threshold and raises matters of general public importance as defined by the Supreme Court in Hermanus Phillipus Steyn v. Giovanni Gnecchi Ruscone [2013] eKLR. 13.The application is opposed by the respondent. In his replying affidavit sworn by Aquinas Wasike, the respondent’s Executive Officer, he states, on the advice of the respondent’s advocates, that the application is a non-starter as no further appeal lies to the Supreme Court following the judgment of this Court in arbitration dispute appeals that relate to section 35 of the Arbitration Act; that the intended appeal does not raise any matters of general public importance to justify certification to the Supreme Court; and the issues raised by the applicant are not novel because both the High Court as well as this Court have severally pronounced themselves on the same. 14.The respondent further states that there are no conflicting decisions and/or controversy concerning interpretation of the term ‘delivered’ and ‘received’ in sections 32 and 35(3) of the Arbitration Act to warrant a review by the Supreme Court. For those reasons the respondent urges this Court to dismiss the application. 15.The application came up for hearing on 9th March 2026. Mr. Ahmednassir Abdullahi, SC together with Ms. Asli Osman appeared for the applicant, while Mr. John Ohaga, SC and Mr. Masika appeared for the respondent. Both Mr. Abdullahi, SC and Mr. Ohaga, SC highlighted their respective client’s written submissions. 16.We have considered the submissions by both parties. The applicant contends that the intended appeal raises profound questions of law that are substantial, transcend the interest of the immediate parties, and bear significant public interest implications for the arbitration regime in Kenya, and therefore, their resolution by the Supreme Court will provide the much needed clarity, resolve potential jurisprudential inconsistences and reinforce Kenya’s commitment to a pro-arbitration environment that adheres to the UNICITRAL Model Law and upholds the rule of law 17.The applicant has framed three questions that he proposes for determination by the Supreme Court. They are:a.the proper construction and interpretation of the phrase ‘received the arbitral award’ as used in section 35(3) of the Arbitration Act 1995, particularly in light of the corresponding visions of the UNICITRAL Model Law “Article 34” and comparative jurisprudence from Model Law jurisdiction;b.whether the issuance of a corrected arbitral award under section 34 of the Arbitration Act is wholly inconsequential to the computation of the three-month limitation period prescribed by section 35(3) of the Act or whether the delivery of the corrected award constitutes a fresh or renewed act of “receipt” that restarts, suspends, or otherwise affects the running of time to mount a challenge to the award under section 35;c.whether the dismissal of an application to set aside an arbitral award under section 35 of the Arbitration Act automatically precludes and/or negates an independent judicial valuation of a parallel or subsequent application for recognition and enforcement of the same award under section 36 read together with section 37 of the Act. 18.Mr. Ahmednassir, SC, submitted that whereas there has been conflicting interpretations as to when time starts running under section 35(3) of the Arbitration Act, there is no binding resolution of the issue by the Supreme Court, yet the above cited questions recur frequently in commercial arbitration litigation. He cited a recent decision of this Court, Merdin & 2 Others vs Mbaya & 2 Others, Civil Application No. E638 of 2025, where this Court granted leave to the applicant to appeal against the ruling of the High Court declining to set aside an arbitral award on the grounds that it was filed outside the three-months period for such applications. He further observed that there are similar appeals before this Court on the same issue, including University of Nairobi vs Multi-Scope Consultancy Engineers Limited [2020] KEHC 9696 (KLR), Dinesh Construction Limited & Anor vs Aircon Electra Services (Nairobi) Limited [2021] KEHC 6762 (KLR) and Wil Developers & Construction Limited vs Government of the Republic of Kenya, Permanent Secretary Vocational Training, Ministry of Education Science and Technology & Another [2021] KEHC 6842 (KLR). 19.Mr. Ohaga, SC, submitted that the threshold for transmitting the intended appeal to the Supreme Court had not been met, and cited the decisions of the Supreme Court in Nyutu Agrovet Limited vs Airtel Networks Kenya Limited [2019] KESC 11 (KLR), Synergy Industrial Credit Limited vs Cape Holdings Limited [2019] KESC 12 (KLR), and Geochem Middle East vs Kenya Bureau of Standards [2020] KESC 1 (KLR). But more fundamentally, he submitted that in Cape Holdings Limited vs Synergy Industrial Credit Limited [2021] KESC 4 (KLR), the jurisdiction issue in this matter was disposed of, where the Supreme Court declared that in conformity with the need for expedition in arbitration matters, where the Court of Appeal assumes jurisdiction in conformity with the principles propounded in Nyutu and Synergy matters and delivers a consequent judgment, no further appeal should ordinarily lie to the Supreme Court, and thus the Supreme Court lacks jurisdiction to entertain such an appeal. 20.On the test of general public importance, Mr. Ohaga, SC, submitted that the threshold in Hermanus Phillipus Steyn v. Giovanni Gnecchi Ruscone (supra) had not been satisfied. 21.Regarding the proposed question for determination by the Supreme Court, the respondent submitted that the meaning of the word ‘received’ in section 35(3) read with section 32(5), is not a novel one as it has been addressed by courts in a litany of decisions, where it has been held that time runs upon notification that the signed award is ready for collection, and that actual physical collection does not postpone the statutory clock. 22.Secondly, as to the effect of a section 34 request, the statutory scheme is express that a request under section 34 is to be made within the prescribed window, and where properly made, the section 35(3) limitation period runs from the date that the request is disposed of. The respondent submitted that the applicant’s complaint is an invitation for this Court and the Supreme Court to revisit the application of that statutory test to the applicant’s chronology, which is a case bound exercise and not of general public importance. 23.Thirdly, the respondent submitted that the enforcement argument under sections 36 to 37 is equally fact specific. The statutory ground for refusal of recognition/enforcement are well known, and are invoked in the enforcement forum on proof of the stated grounds. It was pointed out that in the present matter, once the High Court and this Court found the setting aside application time barred, the court could not proceed to a merit inquiry in the guise of a section 35 application. 24.Lastly, the respondent urged this Court to find that the application before us is an abuse of Court process and dismiss it with costs. 25.We have considered the written and oral submissions raised by parties through their respective advocates. Our determination of this application must start by considering the issue of the Supreme Court’s jurisdiction to hear the intended appeal. The respondent argued that this Court, having substantively heard and determined the appeal that arose from the High Court decision, no second appeal can lie to the Supreme Court. The Supreme Court’s decision in Cape Holdings Limited vs Synergy Industrial Credit Limited (Application 5 (E007) of 2021 [2021] KESC 4 (KLR) (8 October 2021) (Ruling) was cited in support of that submission. 26.In that ruling, the Supreme Court held as follows:“23.The legal position as regards this court’s jurisdiction to hear and determine appeals arising from a section 35 of the Arbitration Act Judgment of the High Court was settled in the Geo Chem Middle East case, wherein this court found as follows:‘Having so stated, we must reiterate that arbitration is meant to expeditiously resolve commercial and other disputes where parties have submitted themselves to that dispute resolution mechanism. The role of courts has been greatly diminished notwithstanding the narrow window created by section 35 and 39 of the Act. To expect arbitration disputes to follow the usual appeal mechanism in the judicial system to the very end would sound a death knell to the expected expedition in such matters and our decisions in Nyutu and Synergy should not be taken as stating anything to the contrary. In this regard, one issue we did not pronounce ourselves on in the Nyutu and Synergy decisions, is whether a further appeal lies to this court from a determination by the Court of Appeal. For the avoidance of doubt, we now declare that in conformity with the principle of the need for expedition in arbitration matters, where the Court of Appeal assumes jurisdiction in conformity with the principle established in these two decisions, and delivers a consequential judgment, no further appeal should ordinarily lie therefrom to this court.’25.We reiterate our holding in the Geo Chem Middle East case and find that this court lacks jurisdiction to entertain this appeal as it is challenging the Court of Appeal judgment, where the Court of Appeal assumed jurisdiction in conformity with the principles established in the Nyutu and Synergy decisions and delivered a consequential judgment.” 27.The application before us in all fours with the above cited decision, which is binding upon this Court. Where the Supreme Court has categorically stated that it is bereft of jurisdiction to entertain an appeal that seeks to challenge this Court’s judgment arising from a section 35 of the Arbitration Act judgment that emanated from a High Court decision, this Court cannot hold otherwise. 28.Having arrived at that conclusion, it would be superfluous for us to consider the other issues raised by the applicant, save to say that if the Supreme Court had jurisdiction to hear the intended appeal, it would have settled the law regarding the three questions framed by the applicant. 29.For the reason aforesaid, we hereby dismiss this application with costs to the respondent. DATED AND DELIVERED AT NAIROBI THIS 26TH DAY OF JUNE 2026.D. K. MUSINGA…………………………JUDGE OF APPEALP. LILAN…………………………JUDGE OF APPEALDR. J. O. OKELLO…………………………JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR.