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Court of AppealPartially AllowedCivil Application No. NAI. 50 of 2002 (UR. 29/2002)

African Airlines International Limited v Eastern and Southern African Trade & Development Bank (PTA Bank) [2002] KECA 217 (KLR)

Court of Appeal
18 March 2002
387 words in judgment
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The bottom line

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Kenya's Court of Appeal agreed to fast-track an airline's bid to appeal out of time because the property at stake would be sold and lost.

What this practically means

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Executive summary

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This is a ruling on urgency delivered on 18 March 2002 by Shah, JA, sitting in chambers in the Court of Appeal at Nairobi in Civil Application No. NAI. 50 of 2002 (UR. 29/2002). African Airlines International Limited sought extension of time to file notice of appeal and record of appeal in an intended appeal against the ruling of the High Court of Kenya at Nairobi (Hewett, Commissioner of Assize) dated 20 April 2000 in HCCC No. 1361 of 1999, in which an injunction was refused and a subsequent review application was dismissed on a procedural point rather than on the merits. The application had first been placed before the judge on 8 March 2002, when urgency was declined; the judge then heard both counsel inter partes on urgency pursuant to Rule 47(5) of the Court of Appeal Rules. The judge expressly declined to determine whether an appeal lies against an order refusing an injunction where the refusal was later the subject of a review application dismissed on a procedural point, holding that the question may properly fall within the jurisdiction of the single judge who will eventually hear the application. On urgency, the judge took into account that the property sought to be sold was substantial and situated within the airport area, that once disposed of the applicant's recourse to it would be gone, and that it might be in the respondent's interests to learn its fate earlier rather than later, remarking that the Court does not shun extra work. He certified the application as urgent, preserving both parties' opportunity to argue it fully before a single judge. No costs order was made and the High Court's decision was not disturbed.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant's application for extension of time to file notice of appeal and record of appeal should be certified as urgent for hearing before a single judge
  2. 2.Whether an appeal lies against the original order declining to grant an injunction where the refusal was the subject of a review application dismissed on a procedural point - a question addressed by counsel but expressly left undecided for the single judge

Key legal issues

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01

Whether the application for extension of time in the intended appeal should be certified as urgent

Holding

Yes - the judge certified the application as urgent after the inter partes hearing.

Reasoning

Exercising his discretion under Rule 47(5) after hearing both counsel, the judge took into account that the property sought to be sold was substantial and situated within the airport area, and that once disposed of the applicant's recourse to it would be gone. He considered it may be in the respondent's interests to know what lies in store for it earlier rather than later, and observed that the Court does not shun extra work. Both parties retained the opportunity to argue the matter fully before the single judge.

p. 2
02

Whether an appeal lies against an order refusing an injunction where the refusal was the subject of a review application dismissed on a procedural point rather than on the merits

Holding

Not determined - the question was expressly reserved for the single judge who will eventually hear the application.

Reasoning

Although counsel addressed the judge on this issue at some length, he declined to decide it in a ruling confined to urgency, holding that it may properly be within the jurisdiction of the single judge who will eventually hear the application. The observation is therefore reserved and forms no part of the ratio of this ruling; it should not be cited as a determination of appealability.

p. 2

Legal principles established

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  • Certification of urgency under Rule 47(5) of the Court of Appeal Rules is a matter within the discretion of the judge, exercised after an inter partes hearing where directed.
  • Where the property sought to be sold is substantial and its disposal would extinguish the intending appellant's recourse to it, that weighs in favour of certifying the application urgent.
  • An earlier refusal by a single judge to certify urgency does not preclude certification after an inter partes hearing conducted under Rule 47(5) of the Rules of this Court.

Court orders

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  1. 1.The application is certified as urgent under Rule 47(5) of the Court of Appeal Rules
  2. 2.The application to proceed to full argument before a single judge, with both parties having the opportunity to be heard

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 1361 of 1999
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal exercised by a single judge in chambers under the Court of Appeal Rules; Rule 47(5) of the Rules of this Court expressly invoked for the inter partes hearing on certification of urgency, in an application for extension of time to file notice of appeal and record of appeal in an intended appeal.

Relief refused

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Determination by the urgency judge of whether an appeal lies against the original order refusing an injunction, given that a review application against that refusal was dismissed on a procedural point

The judge held that the issue may properly fall within the jurisdiction of the single judge who will eventually hear the application, and therefore reserved it

p. 2

Costs

No order as to costs - the ruling is silent on costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Having considered all that has been said to me I am now inclined to grant the certificate of urgency. Both parties will have the opportunity, of course, of arguing the matter fully first before a single judge. I certify the application as urgent.
p. 2Final orders - certification of urgency with both parties reserved the right to argue fully before the single judge
I also remind myself that once a property such as that is disposed off the applicant's recourse thereto will have gone.
p. 2Irreversibility of disposal of substantial property as a ground for certifying urgency
This Court does not shun away from extra work.
p. 2The Court's readiness to entertain urgent applications despite the additional workload
That issue may properly be within the jurisdiction of the single judge who will eventually hear this application.
p. 2Reserved question on appealability of a refusal of injunction after a review dismissed on a procedural point

Issues in the judgment

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minor

The ruling states the application was lodged on 7th March, 2000, yet the application is numbered Civil Application No. NAI. 50 of 2002 (UR. 29/2002) and was first placed before the judge on 8th March, 2002; the 2000 date appears to be a typographical error for 2002.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "African Airlines International Limited v Eastern and Southern African Trade & Development Bank (PTA Bank) [2002] KECA 217 (KLR)", Case Analysis (2002). Civil Application No. NAI. 50 of 2002 (UR. 29/2002). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/217/eng@2002-03-18

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.