Zara Properties Limited (Cpr/2010/24490) v Zara Properties Limited (C.106174) & another [2018] KECA 259 (KLR)
The bottom line
#The Court of Appeal refused to fast-track an application where a stay was already in place and the main appeal hearing was imminent.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the application dated 16th August 2018 should be certified as urgent under Rule 47(5)
Key legal issues
#Whether the matter warranted certification as urgent
No. The stay order already granted on 24th November 2017 covered the decision of the lower court, the main appeal was imminent, and the issue of developments on LR 209/12261 was peripheral and the subject of separate proceedings before the Environment and Land Court.
The court noted the applicant had filed the main appeal (Civil Appeal No. 216 of 2018) but had not included this application within it. A stay order was already in place, and the developments on the property predated the first stay application. The ownership issue was live in other proceedings involving other parties, and pursuing it in this appeal risked abuse of process. The main appeal was coming up for case management shortly.
Whether the application should be heard inter partes
The application may be listed for hearing inter partes when the main appeal is ripe for hearing.
Since the main appeal hearing was imminent, the application could be dealt with alongside it rather than on an urgent basis, avoiding duplication and abuse of process.
Legal principles established
#- A litigant seeking orders covering developments on property must seek them at the time of the first application for stay; the Court will not certify as urgent a repeat application raising matters that existed when the first application was filed.
Court orders
#- 1.Certification of urgency refused
- 2.Application may be listed for hearing inter partes when the main appeal is ripe for hearing
- 3.Costs in the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- null (unclear lower court; subject of Civil Appeal No. 216 of 2018)
- null
- Jurisdiction invoked
- Rule 47(5) of the Court of Appeal Rules
Relief refused
#Urgency certificate
An earlier order of stay was already in place and the main appeal hearing was imminent; the issue of developments on the property was peripheral and live in other proceedings
Costs
Costs in the application.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I find nothing in the record or the submissions to change my decision not to issue the certificate sought.
There is no urgency in dealing with it here when it is peripheral. At any rate, the hearing of the main appeal is imminent.
The application for urgency is rejected. Costs in the application.
Issues in the judgment
#Ruling is ex parte in part - the Attorney General did not appear despite service of hearing notice, and the parties are not named in the ruling
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Zara Properties Limited (Cpr/2010/24490) v Zara Properties Limited (C.106174) & another [2018] KECA 259 (KLR)", Case Analysis (2018). Application dated 16th August 2018 (within Civil Appeal No. 216 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/259/eng@2018-10-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.