Patrick Gathenya v Esther Njoki Rurigi & another [2005] KECA 30 (KLR)
The bottom line
#The Court of Appeal refused to fast-track a request to set aside its own judgment because there was no evidence that an eviction was actually about to happen.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the court should stop its other scheduled business to accommodate the immediate hearing of the notice of motion dated 28 October 2005, i.e. whether to certify it urgent
- 2.Whether there is an imminent danger of the applicant's eviction pursuant to the judgment of 29 April 2005 sufficient to establish urgency
Key legal issues
#Whether the notice of motion dated 28 October 2005 should be certified urgent so as to displace the Court's other scheduled business for immediate hearing
No. Although the applicant had taken steps to comply with the order of 29 April 2005 and his difficulty in obtaining possession of his own plot was not his fault, there was no imminent danger of eviction: no concrete step towards eviction had been taken by the 1st respondent and the formal decree had not been extracted, so its enforcement overnight was not envisaged
The court weighed the applicant's evidence of efforts since June 2005 to regain vacant possession of his own plot 499B, including suits in the superior court, against the total absence of any step by the 1st respondent to commence eviction, which her own counsel confirmed. Because the formal decree had not even been extracted, its enforcement overnight was not envisaged; absent a concrete execution step the situation was neither imminent nor threatened, and the understaffed court would not set aside its scheduled business.
Whether the propriety of the application to set aside the judgment of the Court fell for determination by the single judge
No. The single judge's task on the re-listing was confined to urgency; whether the application to set aside the Court's own final judgment was proper is in the province of the full court
The motion sought to set aside the Court's own final judgment, invoking unspecified provisions of the Constitution, the Judicature Act, the Appellate Jurisdiction Act and the Court's rules. Although the judge described it as unusual, he expressly declined to examine its propriety, holding that question to be in the province of the full court. His mandate on the re-listing was confined to rule 47(5): whether to certify urgency and displace the Court's scheduled business for an immediate hearing.
Whether the applicant had taken steps to comply with the order of 29 April 2005 and whether any delay was attributable to him
Yes. The court was satisfied that the applicant had taken steps to comply with the order of 29.4.05 and that the difficulty in obtaining immediate possession of his own plot 499B was not, in the circumstances, his fault, although this did not establish urgency
The applicant deponed that from June 2005 he demanded vacant possession of plot 499B from the 1st respondent's relatives, sued them in August 2005 and sought summary judgment in September 2005, meeting a limitation defence and an October 2005 suit claiming the plot through adverse possession. The court accepted on these facts that he had taken steps to comply with the 29 April 2005 order and that the difficulty in obtaining possession of his own plot was not his fault.
Legal principles established
#- A litigant seeking certification of urgency must demonstrate a situation that is imminent or concretely threatened - such as a commenced execution process; a mere apprehension of future enforcement will not persuade the court to displace its scheduled business
- A judgment creditor's entitlement to possession or mesne profits does not by itself establish an imminent danger of eviction; where there is no evidence of a concrete step towards execution, there is no urgency to arrest
- The propriety of an application to set aside a final judgment of the Court of Appeal is for the full court, not for a single judge determining certification of urgency
Court orders
#- 1.The notice of motion dated 28 October 2005 was not certified as urgent; the Court declined to stop its other scheduled business to accommodate its immediate hearing
- 2.Costs shall be in the main application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Court of Appeal of Kenya (the decision sought to be set aside is this Court's own final judgment of 29.4.05; the court of first instance in the underlying land dispute is not stated)
- Jurisdiction invoked
- Rule 47(5) of this Court's rules (Court of Appeal Rules) - a single Judge of Appeal re-listing an application inter partes on certification of urgency; the main motion itself invokes unspecified provisions of the Constitution, the Judicature Act, the Appellate Jurisdiction Act and the Court's rules
Relief refused
#Certification of the notice of motion dated 28.10.05 as urgent so that it would be heard immediately, out of turn, in displacement of the Court's scheduled business
The applicant had taken steps to comply with the order of 29.4.05 and his difficulty in regaining his own plot was not his fault, but there was no imminent danger of eviction: no concrete step towards execution had been taken by the 1st respondent, the formal decree had not been extracted, and counsel for the 1st respondent confirmed there was no imminent eviction
Costs
Costs shall be in the main application.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I would still decline to certify the matter urgent and now do so. Costs shall be in the main application.
In the circumstances I see no reason why this Court must keep aside its other scheduled business, understaffed as it is, to arrest a situation which is neither imminent nor threatened.
It would have been another matter if there was evidence of some concrete step taken by the 1st respondent to signify commencement of the eviction process.
It is not the propriety of the application, however, which is before me. That is in the province of the full court.
She is no doubt entitled to possession or mesne profits in lieu thereof but as learned counsel for her confirms, there is no imminent danger of eviction.
I need only determine at this stage whether the court should stop its other scheduled business to accommodate the immediate hearing of the application.
Issues in the judgment
#The narrative contains a truncated/garbled sentence concerning the 1st respondent's acquisition of plot 499A in 1989; words appear to be missing from the text
Typographical/transcription error in the recital of the applicant's apprehension of eviction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Patrick Gathenya v Esther Njoki Rurigi & another [2005] KECA 30 (KLR)", Case Analysis (2005). Not stated in the judgment (notice of motion dated 28.10.05, filed 31.10.05, in the appeal concluded by the judgment of 29.4.05). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2005/30/eng@2005-11-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.