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Court of AppealDismissedNotice of Motion dated 21st June 2005 (Court of Appeal, Nairobi; no registry number stated in the judgment)· [2005] KECA 24 (KLR)

Jacob Juma v Agricultural Finance Corporation & 2 others [2005] KECA 24 (KLR)

Court of Appeal of Kenya (single judge, presiding judge of the Court)
27 September 2005
915 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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The Court of Appeal refused to fast-track a landowner's injunction bid because money damages could compensate him if he ultimately won his case.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal (Deverell JA) delivered at Nairobi on 27 September 2005 on whether a Notice of Motion dated 21 June 2005 should be certified as urgent under rules 47(2) and 47(5) of the Court of Appeal Rules. The applicant, J. Juma, the intending appellant, sought injunctions restraining the Agricultural Finance Corporation, Theta Tea Company and Jennifer Kositany from dealing with, or interfering with his possession of, L.R. No. 12357, a farm of about 100 hectares including a tea plantation, pending an intended appeal against the decision of Njagi J. of 13 June 2005 in HCCC No. 136 of 2005 dismissing the applicant's injunction application and allowing the respondents' counter-application; the Notice of Appeal was lodged on 17 June 2005. The applicant's case was that he agreed in February 2003 to buy the farm for Shs 9 million, paid Shs 2 million to Kositany (denied), tendered a Shs 7 million cheque to AFC (not accepted, AFC claiming more was due), took possession and spent Shs 40 million on development (denied), before an alleged invasion of the farm by over thirty people on 23 March 2005; the respondents asserted he had left the farm on 12 March 2005. The judge identified the only matter for decision as whether urgent certification was needed, bearing in mind that certification postpones other appeals or applications. Finding no likelihood of damage - the possessor believes the farm to be hers and has motive to maintain it - and holding damages an adequate remedy, he declined to certify urgency and made the costs of the inter partes hearing costs in the Motion. No authorities were cited.

Key legal issues

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01

Whether the hearing of the applicant's Notice of Motion dated 21st June 2005 should be certified as urgent under the Court of Appeal Rules

Holding

No - the application is not sufficiently urgent to qualify for the certificate sought, and certification was declined.

Reasoning

The judge treated certification as a judicial discretion to be exercised with regard to other litigants, since certifying the matter urgent would postpone some other appeal or application. On the facts he found no real likelihood of damage to the suit property, because the party in possession believes the farm to be hers and therefore has every motive to look after it. He further held that if the applicant ultimately succeeded he would recover damages for proved loss, and it was not suggested the respondents could not pay. Urgency therefore failed both on absence of likely damage and on the adequacy of damages.

p. 3
02

Whether damages would be an adequate remedy in lieu of priority treatment and interim restraint pending the intended appeal

Holding

Yes - where the party in possession has motive to maintain the property and is not suggested to be unable to pay, damages proved are an adequate remedy and urgency is not made out.

Reasoning

The court reasoned that the respondents would have no motive for not looking after the farm, since Kositany believes it to be hers, so damage was unlikely. Even if damage were later proved, the applicant, if successful, would be entitled to damages, and it was not suggested the respondents would be unable to pay. The availability of a compensatory remedy weighed decisively against finding the kind of harm that justifies an urgent hearing and interim restraint pending appeal.

p. 2
03

The knock-on effect of urgent certification on other matters in the cause list

Holding

Certification of urgency is not cost-free: it necessarily postpones some other appeal or application, a factor the judge must weigh in deciding whether a certificate should issue.

Reasoning

Before determining urgency the judge expressly reminded himself that granting the certificate would push other pending appeals or applications back in the list. This systemic consideration, combined with the absence of likely damage to the property and the adequacy of damages, led him to refuse the certificate. It confirms that urgency certification is a discretionary allocation decision affecting third parties, not merely a private arrangement between the applicant and the respondents.

p. 2

Legal principles established

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  • Certification of urgency in the Court of Appeal will be refused where the applicant cannot show a likelihood of damage to the subject property and damages would be an adequate remedy - in particular, where the party in possession believes the property to be hers and so has every motive to maintain it.
  • In exercising the discretion to certify a matter urgent, the judge must have regard to the effect on other court users, because certification of one matter as urgent leads to the postponement of some other appeal or application.

Court orders

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  1. 1.Refusal to certify the hearing of the Motion dated 21st June 2005 as urgent: 'I hereby decline to certify the hearing of the Motion dated 21st June 2005 as urgent.'
  2. 2.Costs: 'The costs of this hearing inter partes shall be in the said Motion.'

Authorities

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Legislation

  • Court of Appeal Rulesrule 4(2)(b)
  • Court of Appeal Rulesrule 47(2)
  • Court of Appeal Rulesrule 47(5)
On appeal from
High Court of Kenya
HCCC No. 136 of 2005
Jurisdiction invoked
Rules 47(2) and 47(5) of the Court of Appeal Rules (certification of urgency by a single judge and the inter partes rehearing of that question), on a Notice of Motion brought under rule 4(2)(b) of the same Rules in an intended appeal; no constitutional or other statutory provision is invoked.

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, "Jacob Juma v Agricultural Finance Corporation & 2 others [2005] KECA 24 (KLR)", Case Analysis (2005). Notice of Motion dated 21st June 2005 (Court of Appeal, Nairobi; no registry number stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2005/24/eng@2005-09-27

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