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Court of AppealDismissedNot stated in the judgment· [2011] KECA 298 (KLR)

Joyce Akinyi Achieng v Ahmed Noorani [2011] KECA 298 (KLR)

Court of Appeal of Kenya
1 April 2011
PWP.N. Waki
889 words in judgment
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The bottom line

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The Court of Appeal refused to fast-track a stay application, ruling that facing contempt proceedings and waiting eight months to file do not make a case urgent.

What this practically means

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Executive summary

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This was a ruling by Waki JA on a certificate of urgency referred to him inter partes under rule 47(5) of the Court of Appeal Rules after certification had been rejected on 11th March 2011. The underlying dispute concerns a 2007 written sale transaction in which Joyce Akinyi Achieng offered to sell Villa Unit 5 on LR. No. 3734/223, Lavington, Nairobi, to Ahmed Noorani for Shs.17 million; Noorani paid a deposit of Shs.4.4 million. Mbogholi J ordered on 28th July 2010 that the deposit be placed in an interest-earning escrow account with the interest capitalised towards the purchase price, with compliance due within 30 days. Akinyi did not comply and did not seek an extension of time, and a contempt application was pending against her. She moved to the Court of Appeal seeking stay of that order, urging urgency on the basis that other courts' orders made compliance impossible and that threatened incarceration would render the application nugatory. The Court held that the pendency of the contempt application was not a compelling reason for certification, since it was before a competent court where she could respond; that she had conceded not seeking an extension of time; and that an eight-month delay in filing the application did not endear itself to a court of equity. The Court declined to certify the motion as urgent and directed that costs of the reference be costs in the motion. The stay application itself remains to be heard on its merits in the normal course.

Key legal issues

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01

Whether the contempt application pending in the superior court justified urgency certification

Holding

It did not; the contempt application is before a competent court where the applicant has an opportunity to respond, and the stay application would be heard on its merits in the normal course.

Reasoning

The Court reasoned that urgency means displacing the Court's scheduled business, and the applicant had an avenue to answer the contempt charge before a competent court. Having conceded she neither complied with nor sought extension of time for compliance with Mbogholi J's order, she could not rely on the consequences of her own non-compliance. The stay application would be considered on its merits in the ordinary course.

p. 2
02

Effect of delay in seeking relief

Holding

The 8-month delay between the order of 28th July 2010 and the filing of the stay application on 10th March 2011 weighed against the applicant in equity.

Reasoning

The Court treated the delay as disentitling: equity does not assist the dilatory. The application for stay was filed some eight months after the order it sought to stay, and the applicant had also proposed and then not implemented an instalment payment plan. Delay and non-compliance together demonstrated that the matter did not warrant out-of-turn hearing.

p. 2

Legal principles established

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  • The pendency of a contempt application against a party is not, by itself, a compelling reason for certification of that party's application as urgent; urgency certification is reserved for matters that justify displacing the Court's scheduled business.
  • A party who has not complied with a court order and has not sought extension of time for compliance cannot invoke the threat of contempt proceedings as a ground of urgency.

Court orders

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  1. 1.Declined to certify the motion as urgent
  2. 2.Costs occasioned by the reference to be in the motion

Authorities

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Legislation

  • Court of Appeal RulesRule 47(5)
On appeal from
High Court of Kenya
Not stated
Jurisdiction invoked
Rule 47(5) of the Court of Appeal Rules (certificate of urgency referred for hearing inter partes)

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, "Joyce Akinyi Achieng v Ahmed Noorani [2011] KECA 298 (KLR)", Case Analysis (2011). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/298/eng@2011-04-01

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