Introduction and Background
1. By a Notice of Motion dated 17th July 2025, the Applicant seeks orders for a stay of execution of the Ruling delivered on 20th June 2025 together with the resultant decree, and further prays for leave to lodge an appeal against the said Ruling out of time. The Respondent opposes the application through a replying affidavit sworn on 22nd September 2025 by Emily Wangoi Karuga, the Company’s Director. I have also taken into account the submissions placed on record.
Analysis and determination
2. It is undisputed that in its Ruling of 20th June 2025, this Court allowed the Company’s application and adopted the arbitral award dated 24th September 2024. Subsequently, on 18th July 2025, upon the filing of the present application, the Court granted the Applicant a conditional stay of execution, directing the deposit of Kshs. 1,300,000/= into a joint interest-bearing account within twenty-one (21) days. The Respondent Company contends that the deadline lapsed on 8th August 2025 without compliance. I observe that this assertion has not been challenged, nor has the Applicant furnished any evidence demonstrating compliance.
3. The Respondent contends that non-compliance with the Court’s orders rendered the application spent. In any event, even if this position were incorrect, the inevitable consequence would be that any interim stay pending the hearing and determination of the present application lapsed upon failure to satisfy the condition imposed by this Court. The question that therefore falls for determination is whether, notwithstanding the lapse of the conditional stay, this Court retains jurisdiction to grant the substantive relief sought, namely, a stay of execution of the decree and leave to appeal out of time.
4. The application is expressed to be brought under Section 75 of the Civil Procedure Act, Order 51 Rule 1, Order 22 Rule 22, and Order 43 Rule 1 of the Civil Procedure Rules, as well as Articles 50(1), 159 and 165 of the Constitution. However, it is now well settled through judicial pronouncements that the Civil Procedure Act and Rules have a very limited role in arbitral matters. Arbitration proceedings are governed by the Arbitration Act, which is intended to be a complete code in itself.
5. This principle was firmly articulated by the Court of Appeal in Anne Mumbi Hinga v Victoria Njoki Gathara [2009] eKLR, where the Court held that:
“We therefore reiterate that there is no right for any court to intervene in the arbitral process or in the award except in the situations specifically set out in the Arbitration Act or as previously agreed in advance by the parties and similarly there is no right of appeal to the High Court or Court of Appeal against an award except in circumstances set out in section 39 of the Arbitration Act.”
6. Similarly, in Erad Suppliers & General Contracts Limited v National Cereals and Produce Board, HCCC No. 636 of 2009, Odunga J (as he then was) emphasized that section 10 of the Arbitration Act makes the Act a self‑contained code, thereby excluding the application of the Civil Procedure Act and Rules to arbitral proceedings. He observed that the Court lacks jurisdiction to intervene in any manner not expressly provided for in the Arbitration Act, including entertaining applications for stay of proceedings subsequent to an award. The rationale is clear: arbitration is designed to ensure finality and speedy enforcement of awards, and any reliance on the Civil Procedure Rules that undermines these objectives is impermissible.
7. Section 39(3) of the Arbitration Act instructs that: -
(3) Notwithstanding sections 10 and 35 an appeal shall lie to the Court of Appeal against a decision of the High Court under subsection (2)—
(a) if the parties have so agreed that an appeal shall lie prior to the delivery of the arbitral award; or
(b) the Court of Appeal, being of the opinion that a point of law of general importance is involved the determination of which will substantially affect the rights of one or more of the parties, grants leave to appeal, and on such appeal the Court of Appeal may exercise any of the powers which the High Court could have exercised under subsection (2). (emphasis mine)
8. The wording of section 39(3)(b) makes it abundantly clear that the discretion to grant leave to appeal lies exclusively with the Court of Appeal. The High Court has no jurisdiction to confer such leave. This position has been consistently reaffirmed, including in Micro‑House Technologies Limited v Co‑operative College of Kenya [2017] eKLR, where the Court of Appeal reiterated that no right of appeal exists in arbitral awards save for matters expressly provided under section 39. Citing its previous decision in Nyutu Agrovet Limited v Airtel Networks Ltd [2015] eKLR, the Court further held that a right of appeal is a creature of statute and cannot be inferred or implied. The import of these authorities is that this Court lacks jurisdiction to entertain an application for leave to appeal out of time against an arbitral award or a Ruling adopting such an award
Disposition
9. Accordingly, the Notice of Motion dated 17th July 2025 is hereby struck out for want of jurisdiction. The Applicant shall bear the costs of the application, which are awarded to the Respondent.
1. By a Notice of Motion dated 17th July 2025, the Applicant seeks orders for a stay of execution of the Ruling delivered on 20th June 2025 together with the resultant decree, and further prays for leave to lodge an appeal against the said Ruling out of time. The Respondent opposes the application through a replying affidavit sworn on 22nd September 2025 by Emily Wangoi Karuga, the Company’s Director. I have also taken into account the submissions placed on record.
Analysis and determination
2. It is undisputed that in its Ruling of 20th June 2025, this Court allowed the Company’s application and adopted the arbitral award dated 24th September 2024. Subsequently, on 18th July 2025, upon the filing of the present application, the Court granted the Applicant a conditional stay of execution, directing the deposit of Kshs. 1,300,000/= into a joint interest-bearing account within twenty-one (21) days. The Respondent Company contends that the deadline lapsed on 8th August 2025 without compliance. I observe that this assertion has not been challenged, nor has the Applicant furnished any evidence demonstrating compliance.
3. The Respondent contends that non-compliance with the Court’s orders rendered the application spent. In any event, even if this position were incorrect, the inevitable consequence would be that any interim stay pending the hearing and determination of the present application lapsed upon failure to satisfy the condition imposed by this Court. The question that therefore falls for determination is whether, notwithstanding the lapse of the conditional stay, this Court retains jurisdiction to grant the substantive relief sought, namely, a stay of execution of the decree and leave to appeal out of time.
4. The application is expressed to be brought under Section 75 of the Civil Procedure Act, Order 51 Rule 1, Order 22 Rule 22, and Order 43 Rule 1 of the Civil Procedure Rules, as well as Articles 50(1), 159 and 165 of the Constitution. However, it is now well settled through judicial pronouncements that the Civil Procedure Act and Rules have a very limited role in arbitral matters. Arbitration proceedings are governed by the Arbitration Act, which is intended to be a complete code in itself.
5. This principle was firmly articulated by the Court of Appeal in Anne Mumbi Hinga v Victoria Njoki Gathara [2009] eKLR, where the Court held that:
“We therefore reiterate that there is no right for any court to intervene in the arbitral process or in the award except in the situations specifically set out in the Arbitration Act or as previously agreed in advance by the parties and similarly there is no right of appeal to the High Court or Court of Appeal against an award except in circumstances set out in section 39 of the Arbitration Act.”
6. Similarly, in Erad Suppliers & General Contracts Limited v National Cereals and Produce Board, HCCC No. 636 of 2009, Odunga J (as he then was) emphasized that section 10 of the Arbitration Act makes the Act a self‑contained code, thereby excluding the application of the Civil Procedure Act and Rules to arbitral proceedings. He observed that the Court lacks jurisdiction to intervene in any manner not expressly provided for in the Arbitration Act, including entertaining applications for stay of proceedings subsequent to an award. The rationale is clear: arbitration is designed to ensure finality and speedy enforcement of awards, and any reliance on the Civil Procedure Rules that undermines these objectives is impermissible.
7. Section 39(3) of the Arbitration Act instructs that: -
(3) Notwithstanding sections 10 and 35 an appeal shall lie to the Court of Appeal against a decision of the High Court under subsection (2)—
(a) if the parties have so agreed that an appeal shall lie prior to the delivery of the arbitral award; or
(b) the Court of Appeal, being of the opinion that a point of law of general importance is involved the determination of which will substantially affect the rights of one or more of the parties, grants leave to appeal, and on such appeal the Court of Appeal may exercise any of the powers which the High Court could have exercised under subsection (2). (emphasis mine)
8. The wording of section 39(3)(b) makes it abundantly clear that the discretion to grant leave to appeal lies exclusively with the Court of Appeal. The High Court has no jurisdiction to confer such leave. This position has been consistently reaffirmed, including in Micro‑House Technologies Limited v Co‑operative College of Kenya [2017] eKLR, where the Court of Appeal reiterated that no right of appeal exists in arbitral awards save for matters expressly provided under section 39. Citing its previous decision in Nyutu Agrovet Limited v Airtel Networks Ltd [2015] eKLR, the Court further held that a right of appeal is a creature of statute and cannot be inferred or implied. The import of these authorities is that this Court lacks jurisdiction to entertain an application for leave to appeal out of time against an arbitral award or a Ruling adopting such an award
Disposition
9. Accordingly, the Notice of Motion dated 17th July 2025 is hereby struck out for want of jurisdiction. The Applicant shall bear the costs of the application, which are awarded to the Respondent.