Herold R. Fenwick & Associates, a leading firm of chartered quantity surveyors and project managers, has secured a crucial procedural victory after the Court of Appeal revived its attempt to challenge an arbitration defeat in a professional fee dispute against Kwale International Sugar Company Limited (KISCOL).
The ruling, delivered by Justice Luka Kimaru sitting as a single judge on July 13, did not overturn the underlying arbitration award.
Instead, it granted the firm an additional 14 days to seek the High Court’s permission to appeal, breathing fresh life into litigation that had appeared finished only months earlier.
The decision marks the latest chapter in a dispute that has travelled from arbitration to the High Court and now the Court of Appeal.
It also underscores Kenyan courts’ delicate balancing act between enforcing strict procedural rules and ensuring deserving litigants receive a fair hearing.
The dispute originated from an arbitral award published on August 13, 2024, by arbitrator Anthony M. Lubulellah.
The tribunal dismissed Herold R. Fenwich & Associates’ claim and ordered the firm to pay both KISCOL’s costs and the arbitrator’s fees.
High Court
Determined to overturn that outcome, the firm moved to the High Court seeking to set aside the award.
KISCOL responded by asking the court to recognise the award and enforce it as a judgement.
Lady Justice Josephine Mong’are rejected the challenge on a technical but decisive ground.
She found the application had been filed outside the mandatory three-month period prescribed under Section 35(3) of Kenya’s Arbitration Act.
The judge ruled that time began running once the arbitrator notified parties that the award was ready for collection, not when arbitration fees were eventually paid.
“The arbitral tribunal discharges its obligation of delivery once it avails the signed copy of the award,” Lady Justice Mong’are observed.
“Failure of the parties to collect it does not delay or postpone the delivery.”
That conclusion proved fatal.
The High Court struck out the application for want of jurisdiction before turning to KISCOL’s request for enforcement.
It held that none of the limited statutory grounds for refusing recognition had been established.
Fenwich had argued that the award offended public policy and that the arbitrator exceeded his mandate by determining matters allegedly outside the agreed issues.
Lady Justice Mong’are firmly disagreed.
She described public policy as a “high-threshold argument”, warning that it cannot become “a backdoor for appealing the merits of an award”.
The judge concluded the arbitrator merely interpreted the parties’ contract and remained within the authority granted through their partial consent and procedural directions.
Having reached that conclusion, the court recognised the arbitral award as binding, authorised its enforcement as a decree of the High Court, and ordered the applicant to pay KSh70,000 in costs.
That appeared to bring the matter to an end.
Instead, another procedural obstacle emerged.
After losing in the High Court, Fenwick promptly lodged a notice signalling its intention to appeal.
However, its lawyers overlooked another legal requirement.
They failed to seek leave to appeal within the prescribed period before commencing the appellate process.
Court of Appeal
The firm therefore returned to the Court of Appeal asking for more time.
Its explanation was straightforward.
The omission resulted from an inadvertent and honest mistake by counsel rather than any deliberate disregard of the law.
Bashir-ud-Deen Hassanali Juma Hajee, through an affidavit, urged the court to excuse the error and allow the appeal process to continue.
Notably, KISCOL did not oppose the request.
Despite receiving both the application and hearing notice, the company filed neither a replying affidavit nor written submissions, leaving the application uncontested.
Justice Kimaru nevertheless stressed that an unopposed application does not automatically succeed.
He reiterated that Rule 4 of the Court of Appeal Rules grants judges discretionary authority requiring careful consideration of several factors.
Those include the length of delay, reasons offered, prospects of the intended appeal, possible prejudice to the opposing party, and the broader interests of justice.
Applying those principles, the judge found the explanation convincing.
He accepted that the advocates had committed an honest procedural mistake.
He further observed that approximately 45 days had elapsed before the error was discovered, a delay he considered neither excessive nor inordinate.
“The explanation given is excusable,” Justice Kimaru ruled before allowing the application.
The court consequently extended by 14 days the period within which Fenwich must seek leave from the High Court to pursue its intended appeal. It made no order as to costs.
Wider Significance
Although procedural on its face, the ruling carries wider significance for Kenya’s arbitration landscape.
Kenyan courts have consistently emphasised that arbitration is designed to produce final, efficient and binding outcomes with minimal judicial interference.
That policy explains the strict statutory deadlines governing challenges to arbitral awards and the narrow circumstances under which courts may intervene.
Equally, appellate courts have long recognised that rigid adherence to procedural rules should not extinguish potentially arguable claims where genuine mistakes occur and no unfair prejudice results.
Justice Kimaru’s ruling reflects that careful balance.
He neither questioned the merits of the arbitral award nor disturbed the High Court’s reasoning.
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Instead, he merely reopened a narrow procedural window, leaving the substantive battle for another day.
For KISCOL, the arbitral award remains fully recognised and enforceable unless future proceedings produce a different outcome.
For Fenwich, meanwhile, the decision represents something equally valuable in litigation.
Another opportunity to be heard.
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