Jacob Juma v Agricultural Finance Corporation & 2 others [2005] KECA 24 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#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
No - the application is not sufficiently urgent to qualify for the certificate sought, and certification was declined.
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.
Whether damages would be an adequate remedy in lieu of priority treatment and interim restraint pending the intended appeal
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.
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.
The knock-on effect of urgent certification on other matters in the cause list
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.
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.
Legal principles established
#- 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
#- 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.Costs: 'The costs of this hearing inter partes shall be in the said Motion.'
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.