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Court of AppealDismissedUnknown (notice of motion dated 26th January 2012, lodged 30th January 2012)

Sandhurst Limited & 3 others v Kenya Commercial Bank Limited & 3 others [2012] KECA 187 (KLR)

Court of Appeal of Kenya
2 March 2012
368 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~1 min to read original · ~4 min brief

The bottom line

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The Court of Appeal refused to fast-track a motion filed four months late, stressing that parties must file a notice of appeal promptly because it costs little.

What this practically means

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Executive summary

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This is a short interlocutory ruling delivered by a single Judge of Appeal (Omolo JA) in Nairobi on 2nd March 2012, dealing only with certification of urgency for a notice of motion dated 26th January 2012 and lodged on 30th January 2012. The judge expressly declined to consider the merits, which he left to the single Judge who would hear the motion. The only question was whether the motion should jump the queue over other similar motions. The decision challenged was made on 30th September 2011, yet the motion was not filed until 30th January 2012 - a four-month period during which, the court observed, the applicants and their advisers apparently did nothing. Counsel for the applicants, Mr. Miller, explained that a director of the applicant companies had been out of Kenya for a long time fighting extradition proceedings in London, preventing instructions even to file a notice of appeal. The court rejected this explanation, emphasising that a notice of appeal is an inexpensive document ordinarily filed as a matter of course, which can be withdrawn or lapse without heavy expense to either party. Having previously declined to certify the matter urgent, the judge found no valid reason to change course, declined urgency, and directed that the motion be listed in the normal way. Costs occasioned by the urgency proceedings were ordered to be in the motion. No authorities or statutory provisions were cited, and no decision below was 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 notice of motion dated 26th January 2012 is urgent and ought to be set down for hearing on a priority basis, i.e. allowed to jump the queue over other similar motions

Key legal issues

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01

Whether the motion qualified as urgent for priority listing

Holding

The motion was not certified urgent; it must await listing in the ordinary course. The merits are for the single Judge who will hear the motion.

Reasoning

The court distinguished the urgency question from the merits: the single Judge hearing the motion would decide whether it succeeds. On urgency, the applicants explained a four-month delay by reference to a director abroad fighting extradition proceedings in London, but the court found this did not justify the failure even to file a notice of appeal, which is inexpensive and routinely filed. Having earlier declined to certify urgency, the judge saw no valid reason to change that position.

p. 1

Legal principles established

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  • A party seeking to appeal should file a notice of appeal promptly, as it is an inexpensive document filed as a matter of course and can be withdrawn or lapse without heavy expense to either party; unexplained delay weighs against certification of urgency.

Court orders

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  1. 1.The motion is not certified urgent and shall be listed for hearing in the normal way
  2. 2.Costs occasioned by the proceedings regarding the question of urgency shall be in the motion

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Single Judge of Appeal seized of an interlocutory notice of motion under the Court of Appeal's procedural rules (certification of urgency / extension-of-time application).

Relief refused

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Certification of the notice of motion as urgent and listing on a priority basis

There was an unexplained four-month delay between the decision of 30th September 2011 and the filing of the motion on 30th January 2012, and no valid reason was shown to disturb the earlier refusal to certify urgency; a notice of appeal is an inexpensive, routinely filed document.

p. 2

Costs

The costs occasioned by the proceedings regarding the question of urgency shall be in the motion.

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.

What I have to determine at this stage is whether the said motion is urgent and ought to be set down for hearing on priority basis i.e. whether it ought to be allowed to jump the queue over other similar motions.
p. 1Scope of urgency certification stage
a notice of appeal is an inexpensive document which can be filed and which, in most cases, is filed as a matter of course. A notice of appeal can be withdrawn or can lapse on its own without causing heavy expenses to either the party filing it or the party against whom it is served.
p. 1Duty to file notice of appeal promptly
I still decline to do so and direct that the motion herein be listed for hearing in the normal way. The costs occasioned by the proceedings regarding the question of urgency shall be in the motion. Those are my orders.
p. 2Final orders - refusal of urgency certification and costs

Issues in the judgment

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material

The extract is a single-judge interlocutory ruling on urgency, not a full appellate judgment; the case number, the court of origin, the identity of the parties and the nature of the underlying decision of 30th September 2011 are not stated in the text.

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, "Sandhurst Limited & 3 others v Kenya Commercial Bank Limited & 3 others [2012] KECA 187 (KLR)", Case Analysis (2012). Unknown (notice of motion dated 26th January 2012, lodged 30th January 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2012/187/eng@2012-03-02

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