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Court of AppealAllowedCivil Application No. Nai. Not Stated (arising from CA No. 274 of 2014)· [2014] KECA 238 (KLR)

Diamond Hasham Lalji & another v Attorney General & 4 others [2014] KECA 238 (KLR)

Court of Appeal of Kenya
21 November 2014
JMJ. Mohammed
1,149 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 certified an application urgent because court orders protecting the applicants were about to expire, exposing them to arrest and prosecution.

What this practically means

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Executive summary

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This is a ruling by a single Judge of the Court of Appeal at Nairobi on an application under Rule 47(5) of the Court of Appeal Rules for certification of urgency of the applicants' Notice of Motion dated 3rd November 2014, brought under Rule 5(2)(b) of the Rules seeking injunctive and conservatory relief pending the hearing of the intended appeal (Civil Appeal No. 274 of 2014). A previous Judge had declined to certify the motion urgent on 5th November 2014. The applicants relied on temporary conservatory orders granted by the High Court on 28th October 2014, restraining their arrest, charge or prosecution for thirty days, due to lapse on 28th November 2014; they also cited serious health challenges and argued that the appeal would be rendered nugatory without the orders. The 2nd respondent conceded certification; the 4th and 5th respondents opposed, submitting that urgency requires sound reasons and not sympathy. The Judge set out the guiding principles: judicial discretion is wide and unfettered but must be exercised judiciously and upon reason, on sound grounds rather than whim, caprice or sympathy, and in the interests of justice to both parties. Balancing the competing interests, the Judge found that expiry of the conservatory orders would expose the applicants to arrest and prosecution, that the appeal would be rendered nugatory, and that the respondents would suffer no substantial prejudice. The application was certified urgent, to be heard as a matter of urgency, with costs in the application.

Key legal issues

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01

Whether certification of urgency should be granted under Rule 47(5)

Holding

Yes. The applicants' temporary conservatory orders from the High Court were due to lapse on 28th November 2014, exposure to arrest and prosecution was imminent, and failure to grant urgency would render the appeal nugatory with no substantial prejudice to the respondents.

Reasoning

The single Judge applied the crystallized principles governing judicial discretion: that it is wide and unfettered but must be exercised judiciously and upon reason, based on sound grounds rather than whim, caprice or sympathy, and in the interests of justice to both parties. Balancing the competing rights of the parties, the Judge found the impending expiry of the 30-day conservatory orders, the risk of arrest and prosecution, the applicants' serious health challenges, and the nugatory-ness of the appeal sufficient to certify urgency, noting no substantial prejudice to respondents.

p. 3

Legal principles established

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  • A single Judge's discretion on certification of urgency is wide and unfettered but must be exercised judiciously and upon reason, on sound grounds rather than whim, caprice or sympathy, and in the interests of justice to both parties.
  • Under Rule 47(5), refusal by a Judge to certify an application as urgent is not subject to a reference under rule 55, but the applicant may apply informally for the matter to be placed before a single Judge for hearing inter partes.

Court orders

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  1. 1.The Notice of Motion dated 3rd November 2014 was certified urgent and ordered to be heard as a matter of urgency
  2. 2.Costs in the application

Authorities

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Legislation

  • Court of Appeal RulesRule 47(5)
  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 47
  • Court of Appeal RulesRule 55

Cases cited (3)

  • CMC HOLDINGS LIMITED V NZIOKI
    (2004) 1 KLR 173
  • BAGALLO V CHRISTIAN CHILDRENS FUND
    (2004) 2 KLR 73
  • GUTHIAKA V NDURURU
    (2004) 2 KLR 67
On appeal from
High Court of Kenya
Judicial review application (appeal to be Civil Appeal No. 274 of 2014)
Jurisdiction invoked
Rule 47(5) of the Court of Appeal Rules, read with Rule 5(2)(b) of the Court of Appeal Rules

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, "Diamond Hasham Lalji & another v Attorney General & 4 others [2014] KECA 238 (KLR)", Case Analysis (2014). Civil Application No. Nai. Not Stated (arising from CA No. 274 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/238/eng@2014-11-21

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