Rosemary Kinanu Gituma & another v Kenya Commercial Bank Limited [2013] KECA 333 (KLR)
The bottom line
#Kenya's Court of Appeal fast-tracked property owners' challenge against KCB's planned auction because a 90-day sale notice was about to expire.
What this practically means
#Executive summary
#Key legal issues
#Principles governing a single Judge's discretion in certifying an application as urgent under rule 47(5) of the Court of Appeal Rules
The discretion is wide and unfettered but must be exercised on sound reasons, judiciously, and in the interests of justice to both parties, not on whim, caprice or sympathy.
The Judge distilled guiding principles from case law: discretion must be exercised upon reason and judiciously (CMC Holdings v Nzioki), on sound reason rather than whim, caprice or sympathy (Bagallo v Christian Childrens Fund), and for the interests of justice to both parties (Guthiaka v Ndururu). Applying these, the imminent expiry of the 90-day statutory notice of sale risked rendering the pending interim application nugatory, justifying fast-tracking.
Whether urgency was demonstrated on the facts
Urgency was made out because the respondent had re-initiated realization of the charged properties effective 5th April 2013 under a 90-day notice, which could render the pending application nugatory.
The court weighed that the respondent had restarted the statutory power of sale process and that realization could occur at the expiry of 90 days from 5th April 2013. Ends of justice to both parties required the pending application to be fast-tracked so parties would know their position on interim relief before the notice expired.
Legal principles established
#- A single Judge's discretion on certification of urgency is wide and unfettered but must be exercised upon reason and judiciously, for the interests of justice to both parties.
Court orders
#- 1.That the application by way of notice of motion dated 14th February 2013 be heard as a matter of urgency
- 2.Costs in the application
- On appeal from
- High Court of Kenya at Nairobi (Milimani Commercial and Admiralty Division)
- HCCC No. 682 of 2012
- Jurisdiction invoked
- Rule 47(5) of the Court of Appeal Rules - informal inter partes application before a single Judge for certification of urgency
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rosemary Kinanu Gituma & another v Kenya Commercial Bank Limited [2013] KECA 333 (KLR)", Case Analysis (2013). Civil Application 43 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/333/eng@2013-04-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.