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Court of AppealAllowedNot stated in the judgment

George M. Muhoro v Mwalimu Investment Company Ltd & 1 other

Court of Appeal of Kenya
19 December 2014
476 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal can reverse its own refusal to certify a case as urgent when new evidence, like a threat of execution, emerges.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Nairobi by Nambuye, JA, delivered on 19th December 2014, dealing solely with certification of urgency under Rule 47(5) of the Court of Appeal Rules. Urgency had initially been declined on 9th December 2014 when the matter was placed before the judge ex parte. The applicant, through Mr. Osoro, had the file returned for an inter partes hearing on urgency, arguing that his properties had been attached as shown by annexures to a supplementary affidavit, that execution was threatened by proclamation, and that he intended to raise serious legal issues against the decree - including that the judgment sought to be executed was over 13 years old and was undated and unsigned. Counsel for the respondent, Mr. Muthama, was handicapped for want of a response to the further affidavit but acknowledged that execution had been set in motion by proclamation. The judge saw the proclamation dated 9th December 2012 and was satisfied there was a threat of execution. She held that the merits of the intended challenge to the decree fell outside the certification application. Because proof of threatened execution had not been within her knowledge when she first declined certification, she found a genuine request for certification, reversed her order of 10.12.2014 and certified the application as urgent. No costs order was made.

Key legal issues

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01

Whether the refusal to certify urgency could be revisited on an inter partes basis

Holding

Yes. Having seen the proclamation evidencing threatened execution, which was not before the court when urgency was first declined, the judge was satisfied there was a genuine request for certification and reversed the earlier order.

Reasoning

The applicant demonstrated by annexures and a proclamation dated 9th December that his properties faced attachment. Counsel for the respondent conceded the execution process had been set in motion. This material was not within the judge's knowledge when urgency was first declined on 9th/10th December 2014, justifying reversal of that order.

p. 2
02

Whether the merits of the intended application (validity of the decree, age of judgment) were relevant to certification

Holding

No. The merits of the arguments the applicant intended to raise against execution were outside the ambit of the certification application.

Reasoning

The judge held that the applicant's challenges to the decree - that it was more than 13 years old, unexplained delay in execution, and that it arose from an undated and unsigned judgment - belonged to the substantive application to be heard under the certificate, not to the urgency screening itself. Only the existence of a genuine threat requiring urgent relief mattered.

p. 2

Legal principles established

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  • A judge who has declined to certify a matter as urgent may, on an inter partes hearing and upon proof of changed or newly demonstrated circumstances such as a threat of execution, reverse the earlier refusal and certify the application as urgent.

Court orders

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  1. 1.The court's order of 10.12.2014 declining certification of urgency was reversed and substituted with an order that the applicant's application be certified urgent
Jurisdiction invoked
Rule 47(5) of the Court of Appeal Rules (certification of urgency)

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, "George M. Muhoro v Mwalimu Investment Company Ltd & 1 other", Case Analysis (2014). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/158/eng@2014-12-19

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