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Court of AppealDismissedNotice of Motion dated 27th August 2014 (Court of Appeal, Nairobi)· [2014] KECA 346 (KLR)

Villa Care Management Ltd v Villa Care Management Ltd [2014] KECA 346 (KLR)

Court of Appeal of Kenya
3 October 2014
AMA.K. Murgor
858 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 refused to fast-track Villa Care's application, ruling that unpaid service charges alone do not prove a case is urgent.

What this practically means

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Executive summary

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This is a single-judge interlocutory ruling of the Court of Appeal at Nairobi, delivered by Murgor JA, declining to certify the applicant Villa Care Management Ltd's Notice of Motion as urgent. The underlying dispute concerns management and service charge arrangements over twenty seven houses on LR No. 4857/121 Nairobi, developed by Easthaven Development Company Limited. Six houses were sold to the respondent and six to Mentor Group Ltd. Mentor Group appointed Villa Care to manage all twenty seven houses, but the respondent objected to Villa Care's allegedly exorbitant management and service charge fees, and Onyancha J of the High Court, by ruling of 26th May 2014, granted an injunction restraining Villa Care from providing management services to the respondent's six houses pending trial. Villa Care filed a Notice of Appeal and then a Notice of Motion on 27th August 2014 seeking an injunction restraining execution of the High Court order, supported by a Certificate of Urgency sworn by Ndolo Felix Onyango. The application, referred back under rule 55 of the Court's rules for hearing inter partes, was argued by Mr Onyango for the applicant, who claimed Kshs. 1,000,000 in unpaid service charges for common areas was compromising services to all home owners, and opposed by Mr Makumi for the respondent. The court held that mere non-payment, absent evidence of business standstill or prejudicial effect, disclosed no urgency, and reaffirmed its earlier decision, ordering the costs of the urgency application to be in the main application. The appeal against the High Court ruling remains pending; the disposition recorded here concerns urgency certification only.

Key legal issues

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01

Whether urgent circumstances were shown to justify certification of the application

Holding

No urgent circumstances were demonstrated; the claimed loss of Kshs. 1,000,000 in unpaid service charges was not shown to prejudice the applicant's operations

Reasoning

The court noted that the applicant's sole ground of urgency was non-payment of service charges by the respondent. Counsel submitted the unpaid sum affected services to all home owners, but on being pressed gave no substantiated explanation of how the non-payment impaired the applicant's ability to provide services. The court therefore declined to certify urgency, reaffirming its earlier decision of August 2014.

p. 2

Legal principles established

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  • A party seeking certification of urgency before the Court of Appeal must demonstrate concrete urgent circumstances; mere commercial loss from non-payment of fees, without evidence of prejudice or business standstill, does not warrant a certificate of urgency

Court orders

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  1. 1.The Notice of Motion is not certified as urgent
  2. 2.The decision of 28th/29th August 2014 declining certification of urgency is not altered
  3. 3.The costs of the application for urgency to be in the main application

Authorities

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Legislation

  • Court of Appeal RulesRule 55
On appeal from
High Court of Kenya
Jurisdiction invoked
Rule 55 of the Court of Appeal Rules (reference back of an application for certification of urgency 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, "Villa Care Management Ltd v Villa Care Management Ltd [2014] KECA 346 (KLR)", Case Analysis (2014). Notice of Motion dated 27th August 2014 (Court of Appeal, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/346/eng@2014-10-03

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