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Nairobi City Water and Sewerage Company v Capture Solutions Limited (Civil Application E136 of 2022) [2026] KECA 1522 (KLR) (31 July 2026) (Ruling) Neutral citation: [2026] KECA 1522 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Application E136 of 2022 W Karanja, HA Omondi & AO Muchelule, JJA July 31, 2026 Between Nairobi City Water and Sewerage Company Applicant and Capture Solutions Limited Respondent (Being a reference from the decision of (Sichale, JA.) dated 4th November 2022 in an application seeking to extend the time to appeal out of time against the ruling of the High Court at Nairobi in Misc. Civil Appl. No. E679 of 2020) Ruling 1.The background to this application is that on 27th December 2019, an arbitral tribunal presided over by Prof. Ike Ehiribe issued a final award finding Nairobi City Water & Sewerage Company Limited (the applicant) in breach of two contracts for the supply, delivery, development, installation, implementation and commissioning of a GIS-enabled system and meter census at the contract sums of Kshs.39,996,000 and Kshs.118,802,000. The tribunal consequently awarded Capture Solutions Limited (the respondent) Kshs.57,729,720 inclusive of VAT at 16%, together with interest thereon at the rate of 12% per annum. 2.The respondent subsequently applied to the High Court (Majanja, J.) for recognition, adoption and enforcement of the arbitral award. In a ruling delivered on 27th August 2020, the High Court found that the respondent had rendered the contracted services and supplied goods for which it had not been paid; that the arbitral tribunal had neither exceeded the scope of the reference nor determined matters beyond the scope of the arbitration agreement; that the respondent had not been unjustly enriched; and that the award was not contrary to public policy. The High Court, therefore, recognized and enforced the arbitral award pursuant to section 36 of the Arbitration Act. 3.The applicant felt aggrieved by that decision, but did not file the notice of appeal within the 14 days prescribed by the Court of appeal rules. Thereafter, the applicant filed an application seeking extension of time to file and serve a notice of appeal out of time. The applicant attributed the delay to the need to re- examine the facts of the matter and obtain a second opinion, a process which it contended was prolonged by operational disruptions occasioned by the COVID -19 pandemic. It further maintained that the intended appeal was arguable as the award allegedly offended principles of public procurement and the prudent, responsible and lawful use of public funds. The respondent opposed the application, contending that the delay was 34 days rather than 21 days; that the applicant's right of appeal had been extinguished, and that there was already a pending appeal, Civil Appeal No. E514 of 2020, relating to the same subject matter. 4.In a ruling delivered on 23rd April 2021, Ouko, JA (as he then was) dismissed the application. The learned Judge found that the explanation advanced for the delay was unsupported by evidence and implausible, noting that the filing of a notice of appeal merely required a simple expression of intention to appeal and did not warrant prolonged review or consultation. The delay was, therefore, held to be inordinate and unexplained. The learned Judge further found that the intended appeal was unnecessary and potentially abusive of the court process because there was already a pending appeal concerning the same subject matter through which the applicant could pursue the relief it sought. The Judge also expressed doubt whether an appeal against the arbitral award could be sustained in the absence of leave to challenge the award. On those grounds, the application for extension of time was dismissed. 5.Subsequently, the applicant herein filed an omnibus application seeking, inter alia:“1)… 2.That this honourable court be pleased to hear and determine the application simultaneously with the following application and appeal presently before this honourable court: 3.That this honourable court be pleased to grant the applicant leave to file an appeal from the decision of Hon. Justice Majanja given on 27th August 2020 in Misc. Civil Application No. E679 of 2020 by which His Lordship allowed the chamber summons application dated 18th July 2020 for the recognition and enforcement of an arbitral award by prof. Ike Ehiribe dated 27th December 2019 in the dispute between Capture Solutions Limited and Nairobi City Water and Sewerage Company Limited. 6.The applicant contended in the motion that the superior court had erroneously recognized and enforced the arbitral award, which it maintained was manifestly unjust, legally flawed, contrary to public policy, and, therefore, undeserving of recognition and enforcement. It asserted that it faced an imminent risk of execution arising from the enforcement of the award and that, although it was desirous of challenging the award on appeal, its application for leave to appeal out of time had been dismissed. The applicant further maintained that the respondent had failed to supply the goods contracted for and argued that enforcement of the award would occasion substantial injustice. On that basis, it urged that its intendedappeal was arguable and possessed reasonable prospects of success. 7.In the ruling delivered on 4th March 2022, this Court (M’Inoti, J. Mohammed & Kantai, JJ.A.), in dismissing the omnibus motion, observed inter alia:“10.Rule 4 of the Court of Appeal Rules provides for extension of time for doing any act by a party who has not done that act within the time provided. The practice of the Court is that such an application is made formally and is heard by a Single Judge.Rule 55 of the said rules…. 11.The applicant here was a victim of an arbitral award that it was not happy with. It did not apply to set the award aside as provided by the Arbitration Act. The award was recognized by the High Court as provided by the said Act. The applicant applied for leave to appeal the decision of the High Court to this Court but the Single Judge did not find merit in the application and dismissed it. The applicant did not apply for a reference under Rule 55 of the rules of this Court and the decision of the Single Judge stands. 12.In the present application, the applicant is seeking leave to appeal the decision of the High Court dated 27th August 2020 to this Court, after reaching a dead-end on the application for extension of time under Rule 4 of the Court of Appeal Rules. Rule 39(b) of the same rules provides as follows regarding applications for leave to appeal to this court in civil matters.39.In civil matters…(b)where an appeal lies with leave of the court, application for such leave shall be made in the manner laid down in rules 42 and 43 within fourteen days of the decision against which it is desired to appeal or, where application for leave to appeal has been made to the superior court and refused, within 14 days of such refusal. (Emphasis added)Under that rule, the applicant was obliged to make an application for leave to appeal within 14 days from 27th August 2020. Instead, the application was made on 28th June 2021, almost ten (10) months out of time. Having failed to apply for leave to appeal within the period stipulated in rule 39(b), the applicant was obliged to seek extension of the time to apply for leave. Not only has the applicant failed to do so, it has not even attempted to explain the delay of ten months. 13.We have considered the motion before us and, considering all the material and all the issues we have addressed, we find no merit in the applications which we dismiss with costs to the respondent.” 8.By way of motion dated 25th April 2022, pursuant to Articles 159(d), 164(5), 201(d), 227, 259 of the Constitution, sections 3, 3A, 3B of the Appellate Jurisdiction Act, Rule 4, 39 (b) and 47 of the Court of Appeal Rules, the applicant herein sought, inter alia:“1)Spent.2)That this honourable court be pleased to grant the applicant an extension of time to file an application for leave to appeal from the decision of Hon., Justice Majanja given on 27th August 2020, in Misc. Civil Appl. No. E679 of 2020 by which His Lordship allowed the chamber summons application dated 18th July 2020 for the recognition and enforcement of an arbitral award by Prof. 9.The applicant contended that substantial public funds were at risk as a result of what it described as a usurious, unconscionable and legally flawed arbitral award. It maintained that the intended appeal raised issues of significant public importance, including the prudent and responsible use of public finances under Article 201 of the Constitution and the principles of fairness, equity, transparency and cost- effectiveness in public procurement under Article 227 of the Constitution. The applicant further asserted that it had deposited Kshs.10,000,000 in the superior court as security and that the respondent would suffer no prejudice as the award continued to accrue interest. As a public entity entrusted with public resources, the applicant argued that it was duty-bound to challenge the superior court’s decision recognizing and enforcing the award. It further maintained that the arbitral award of 27th December 2019 was contrary to law and public policy and ought not to have been recognized or enforced. While acknowledging that its previous attempts to challenge the award had failed before a single Judge in Civil Application No. E307 of 2020 and before a full bench in Civil Application No. E230 of 2021, the applicant argued that the Court, in dismissing the latter application, had indicated that the proper course was to seek an extension of time within which to apply for leave to appeal. It therefore maintained that the intended appeal raised important questions of law and public policy warranting consideration by the Court. 10.In support of the application, the applicant deposed that any appeal against the High Court’s ruling of 27th August 2020 required prior leave of the Court, which ought to have been sought within fourteen days of that decision. Acknowledging that it was approximately one year, seven months and fourteen days out of time, the applicant sought an extension of time to file an application for leave to appeal. It attributed the delay to procedural and technical missteps, compounded by operational disruptions arising from the COVID-19 pandemic, during which its management was heavily engaged in responding to the public health crisis and maintaining essential services. The applicant explained that these circumstances caused delays in internal decision-making and legal processes. It further pointed out that it had previously filed Civil Application No. E307 of 2020 seeking leave to file a notice of appeal out of time, but that application had been dismissed by Ouko, JA (as he then was), who observed that an appeal against the arbitral award could not be sustained without first obtaining leave. The applicant contended that the same position was reiterated by the full bench in its ruling of 4th March 2022. It, therefore, argued that its earlier failures were procedural in nature and should not override the imperative of substantive justice, particularly where the intended appeal was neither frivolous nor devoid of public importance. 11.The respondent opposed the application, contending that it was barred by the doctrine of res judicata because it sought to revisit issues that had already been raised and determined in Civil Application No. E230 of 2021, culminating in the ruling delivered on 4th March 2022. The respondent argued that the applicant was attempting to re-litigate matters that had already been conclusively addressed and should not be afforded a further opportunity to challenge issues arising from the arbitration. It further asserted that the application had been prompted by the applicant’s apprehension of an adverse outcome in Civil Appeal No. E514 of 2020, which was then pending judgment. According to the respondent, the applicant had consistently failed to follow the proper procedural path and had once again failed to provide a credible or satisfactory explanation for the prolonged delay in bringing the present application. 12.In a ruling delivered on 4th November 2022, Sichale, J.A. dismissed the application. The learned Judge found that the motion constituted a gross abuse of the court process because the applicant was seeking, through a fresh application, substantially the same relief that had previously been refused by both Ouko, JA (as he then was) and a full bench comprising M'Inoti, J. Mohammed and Kantai, JJ.A. The Judge held that, having unsuccessfully sought an extension of time to file a notice of appeal and subsequently failed to obtain leave to appeal against the decision of Majanja, J, the applicant could not properly reopen the same issues through another application. The learned Judge, therefore, concluded that the motion was devoid of merit, amounted to a waste of judicial time, and dismissed it with costs to the respondent. 13.Aggrieved by that decision, the applicant, by a letter dated 2nd December 2022, requested that a full bench of the Court be empaneled to hear and determine a reference against the decision of Sichale, JA. 14.During hearing of the application, Senior Counsel Mr. Paul Muite, together with Mr. Kithinji Marete for the applicant, submitted that the learned single Judge erred in dismissing the motion for extension of time to seek leave to appeal against the High Court’s decision recognizing and enforcing the arbitral award. Counsel argued that, although leave of the Court of Appeal is required to challenge a judgment adopting an arbitral award, the single Judge misdirected herself by treating the issue of leave as having already been conclusively determined in earlier proceedings, whereas the prior applications before Ouko, JA (as he then was) and the full bench concerned different reliefs, namely extension of time to file a notice of appeal and a procedurally defective application for leave, and did not determine an application for extension of time to seek leave to appeal. Counsel acknowledged the earlier procedural missteps but maintained that the applicant’s present application was distinct and properly before the Court. They further contended that the intended appeal is arguable on the basis that the arbitral tribunal and the High Court allegedly failed to consider evidence that the respondent did not deliver the contracted goods, with the result that enforcement of the award would require the expenditure of substantial public funds for goods not received. Emphasising the financial exposure, accrued interest, and the applicant’s status as a public entity, counsel submitted that the matter raises significant issues of public interest and public policy. They, therefore, urged the Court to interfere with the exercise of discretion by the single Judge, allow the reference, extend time to seek leave to appeal, and permit the applicant to challenge the recognition and enforcement of the arbitral award. 15.On the other hand, Mr. Tumu, learned counsel holding brief for Mr. Muturi for the respondent, submitted that the reference was devoid of merit and that the applicant had failed to demonstrate any basis upon which the full Court could interfere with the exercise of the single Judge’s discretion. Counsel argued that the application was res judicata and constituted a gross abuse of the court process, being the third attempt by the applicant to obtain leave to challenge the same decision of the High Court after similar applications had been dismissed by both Ouko, JA (as he then was) and a full bench of the Court. It was contended that no plausible explanation had been advanced for the delay of approximately two years, and that the applicant’s reliance on the COVID-19 pandemic was untenable given that the arbitral proceedings themselves were conducted during the pandemic. Counsel further pointed out that no reference had been lodged against the decision of Ouko, JA, and that the applicant was impermissibly seeking to re-litigate matters already determined, contrary to the principles of finality of litigation. It was also submitted that the public policy arguments raised by the applicant went to the merits of an appeal that had never been properly instituted, while the existence of Nairobi Civil Appeal No. E514 of 2020, arising from the same dispute and concerning the arbitral award and its recognition, rendered the present proceedings unnecessary and potentially duplicative. The respondent additionally invoked the doctrine of merger, arguing that upon recognition and enforcement by the High Court, the arbitral award became subsumed in the court’s judgment. Accordingly, counsel urged the Court to uphold the decision of the single Judge and dismiss the reference with costs. 16.Rule 57(1)(b) of the Court of Appeal Rules, 2022 permits a party aggrieved by a decision of a single Judge to apply to the full Court for its variation, discharge or reversal. In determining such a reference, the full Court will not interfere merely because it would have reached a different conclusion, but only where it is demonstrated that the single Judge failed to exercise discretion judicially by taking into account an irrelevant consideration, failing to consider a relevant matter, or acting on a misapprehension of the facts or the law, as stated in Kimathi & another -vs- Muriuki & 12 others (Civil Appeal (Application) 61 of 2020) [2023] KECA 666 (KLR) and restated in Makove (Commissioner of Insurance) -vs- Statutory Manager United Insurance Company Limited & 196 others (Civil Appeal (Application) 279 of 2009) [2024] KECA 846 (KLR). 17.We are satisfied that the learned single Judge misapprehended the nature of the relief sought before her by treating it as substantially identical to the relief sought in the earlier applications before Ouko, JA (as he then was) and the full bench. Whereas the earlier applications concerned extension of time to file a notice of appeal and an application for leave to appeal filed out of time, the application before the learned single Judge sought extension of time to apply for leave to appeal under Rule 39(b) of the former Rules (now Rule 41(1)(b) of the Court of Appeal Rules, 2022), a procedural step which had not been expressly and finally determined in the earlier proceedings. To that limited extent, the learned Judge proceeded on a misapprehension of the procedural history of the matter. 18.However, that misdirection does not, on the totality of the record, avail the applicant. The earlier rulings delivered by Ouko, JA (as he then was) and the full bench, properly understood within their procedural context, conclusively addressed the applicant’s inability to obtain appellate intervention arising from the same arbitral award and the same superior court judgment, particularly on account of inordinate delay and failure to meet the threshold for extension of time. The applicant did not challenge those determinations by way of reference or further appellate process. The present application is therefore, in substance, an attempt to reopen matters that were either directly and substantially determined, or which ought properly to have been raised in the earlier proceedings. 19.The doctrine of res-judicata, codified under section 7 of the Civil Procedure Act, bars, not only matters that were directly and substantially in issue in previous proceedings between the same parties, but also those which ought to have been raised therein. Its application is not confined to substantive suits but extends to interlocutory and appellate proceedings where the elements of finality, identity of parties and issues, and competence of jurisdiction are satisfied. The Supreme Court has affirmed the expanded application of the doctrine as a principle of general application grounded in public interest in finality of litigation and the efficient administration of justice. See John Florence Maritime Services Limited & another -vs- Cabinet Secretary for Transport and Infrastructure & 3 others [2015] eKLR. 20.Closely allied to res judicata is the doctrine of abuse of the process of the Court, which is rooted in the Court’s inherent jurisdiction to prevent misuse of its procedures. This Court held in Muchanga Investments Ltd -vs- Safaris Unlimited (Africa) Ltd & 2 Others & 2 others [2009] KECA 453 (KLR) that, abuse of process includes the improper use of judicial proceedings to relitigate issues already determined or to pursue successive applications arising from the same cause of action in a manner that is oppressive, vexatious, or designed to circumvent final judicial determinations. It also encompasses litigation in instalments, where a party, having had an opportunity to present its entire case, seeks to advance it piecemeal through multiple proceedings in the hope of obtaining a different outcome. 21.In the present case, the applicant’s repeated attempts to secure appellate intervention through successive applications founded on the same factual matrix amount to impermissible litigation in instalments. Such conduct undermines the principle of finality of litigation and constitutes an abuse of the process of the Court. 22.In light of the foregoing findings on res judicata and abuse of process, it is unnecessary to consider the motion under Rule 4 of the Court of Appeal Rules, the same having been fatally compromised by the applicant’s attempt to relitigate matters already conclusively determined by this Court. 23.Accordingly, the reference is dismissed. The ruling of the learned single Judge is upheld, and the applicant’s motion for extension of time is hereby dismissed with costs to the respondent. It is so ordered. DATED AND DELIVERED AT NAIROBI THIS 31ST DAY OF JULY 2026W. KARANJA....................................JUDGE OF APPEALH. A. OMONDI.....................................JUDGE OF APPEALA.O. MUCHELULE....................................JUDGE OF APPEALI certify that this is a true copy of the original.SIGNED DEPUTY REGISTRAR.