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Court of AppealDismissedCivil Application Sup No. 13 of 2014 (UR 9/2014)· [2017] KECA 770 (KLR)

Equip Agencies Limited v Akber Abdullahi Kassam Esmail & 4 Others

Court of Appeal
17 February 2017
3,003 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to let Equip Agencies take its case to the Supreme Court, ruling that private disputes don't qualify as matters of public importance.

What this practically means

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Executive summary

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Equip Agencies Limited applied to the Court of Appeal for certification under Article 163(4)(b) of the Constitution that a matter of general public importance was involved in its intended appeal to the Supreme Court against part of the judgment of Nambuye, Musinga and M'Inoti JJA delivered on 4 April 2014 in Civil Appeal No. 267 of 2004. That judgment had set aside the High Court's contempt finding (Ojwang, Ag. J) against the respondents, holding that contempt proceedings had not followed proper procedure, that the ex parte injunction of 13 August 2004 was a nullity for exceeding the 14-day limit in Order 39 rule 3(2), and that the alleged contemnors were denied a fair hearing. The applicant argued two issues of public importance: whether an advocate may advise a client that a court order is null and void, and the nullity of ex parte injunctions exceeding 14 days. The respondents, through Mr. Ochieng Oduol, opposed, contending the application distorted the record, challenged only part of the ratio, and amounted to a request for an advisory opinion. The court, applying Hermanus Phillipus Steyn v. Giovan Gnecchi Ruscone and Murai v. Wainaina, held that a matter of general public importance must transcend the parties and affect a large number of people. The issues raised were inter-partes, commonplace and not novel; the advocate-advice question never arose for determination. Mere dissatisfaction with a decision is not a legitimate basis for certification. The application was dismissed with costs to the respondents.

Key legal issues

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01

Threshold for certification under Article 163(4)(b)

Holding

The applicant failed to demonstrate that the intended appeal raises a matter of general public importance; the issues were between the parties only.

Reasoning

The court restated the Steyn v Ruscone and Murai v Wainaina principles: no exhaustive definition exists, but the matter must transcend the parties and affect society or a large number of people. The applicant only showed grievance at the decision without demonstrating wider societal impact, so the threshold was not met.

p. 4
02

Whether the nullity of an ex parte injunction exceeding 14 days is of general public importance

Holding

No - the law on validity of ex parte injunctions is commonplace and courts frequently decide such questions; the finding was inter-partes.

Reasoning

The court held there was nothing novel in declaring an ex parte injunction issued for 45 days, contrary to Order 39 rule 3(2), a nullity. Such decisions are routine and their law commonplace; the declaration affected only the parties before the court, not the public or non-parties.

p. 5
03

Whether the advocate-advice question arose for determination

Holding

The question whether advocates may advise clients that an order is null and void was not determined by the court below and cannot ground certification.

Reasoning

The court held the issue did not arise and was not canvassed; an applicant cannot seek to appeal against a matter that was not the subject of determination. It reaffirmed that served orders must be obeyed and only a court may determine their validity.

p. 5

Legal principles established

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  • A matter of general public importance under Article 163(4)(b) must transcend the interests of the parties and affect the rights of a large number of people or bear on public interest.
  • Mere dissatisfaction with a Court of Appeal decision is not a legitimate basis for seeking certification.
  • Court orders once served must be obeyed; only a court of law may determine their validity, not parties or their advocates.
  • The onus rests on the certification applicant to show the statutory threshold is attained.

Court orders

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  1. 1.The application for certification under Article 163(4)(b) is dismissed
  2. 2.Costs of the application awarded to the respondents
On appeal from
Court of Appeal at Nairobi
Civil Appeal No. 267 of 2004
Jurisdiction invoked
Article 163(4)(b) of the Constitution of Kenya 2010 - certification that a matter of general public importance is involved

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, "Equip Agencies Limited v Akber Abdullahi Kassam Esmail & 4 Others", Case Analysis (2017). Civil Application Sup No. 13 of 2014 (UR 9/2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/770/eng@2017-02-17

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