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Court of AppealDismissedNot stated in the judgment· [2018] KECA 481 (KLR)

Bryan Yongo v Jigisha P. Jani & 2 others [2018] KECA 481 (KLR)

Court of Appeal of Kenya
25 May 2018
KMK. M'inoti
1,492 words in judgment
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The bottom line

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The Court of Appeal refused to fast-track Bryan Yongo's application, confirming urgency in Kenyan courts must be earned with evidence, not claimed.

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 (M'inoti, JA) on an application by Bryan Yongo under rule 47(5) of the Court of Appeal Rules for certification of urgency of his application for stay of proceedings in Environment & Land Court Case No. 13 of 2009, pending an intended appeal against the ruling of Gacheru, J. dated 23rd June 2017. The judge had dismissed the applicant's three applications arising from a 2005 sale agreement over the suit property and related consent orders for monthly rent, finding no contempt by the respondents and no basis to vary the consent order, and dismissing the third application as an abuse of process. The applicant sought stay to prevent the hearing of a suit he had himself filed, contending it was fixed for hearing on 28th May 2018 and that its determination would render his intended appeal nugatory. The court declined to engage with the merits of the stay application, which it held was for the full Court, confining itself to the question of urgency. Applying its earlier decisions, it held that certification of urgency is discretionary and judicious, is never granted as of right, and requires a showing that failure to hear the application promptly would render both the application and the intended appeal nugatory. Finding no impending action or threat, and noting that only a mention was scheduled and that the application sought no injunction, the court declined to certify the application urgent, with costs to be in the application for stay of proceedings.

Key legal issues

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01

Whether the application met the threshold for certification as urgent

Holding

The application was not certified urgent. The single judge could not venture into the merits of the stay application, which is for the full Court, and the applicant failed to show any impending action or threat justifying priority hearing.

Reasoning

Certifying urgency is discretionary and must be exercised judiciously, not as of right. The applicant sought only stay of proceedings, not an injunction against distress or eviction. The ruling complained of had been in place for almost a year with nothing happening, and the date fixed in the trial court was only a mention. The court found the urgency claim unsupported by affidavit or oral submissions and declined certification, noting it was odd that applicants who filed their own suit sought to delay its hearing.

p. 2

Legal principles established

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  • Certification of urgency is a discretionary matter to be exercised judiciously, not granted as of right; an applicant must show circumstances in which failure to hear the application promptly would render the application and intended appeal nugatory.
  • Before a matter is allowed to jump the queue of earlier-filed matters, it must be shown to deserve priority hearing, in fairness to all litigants and for case management purposes.

Court orders

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  1. 1.Declined to certify the application urgent
  2. 2.Costs shall be in the application for stay of proceedings

Authorities

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Legislation

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

Cases cited (4)

  • Sahit Investments Ltd v. Josephine Akoth Onyango
    CA No. 27 of 2015
  • Jared Okello v. Charles Otieno Opiyo & 3 Others
    CA No. 151 of 2017
  • Railways & Allied Workers Union v. Rift Valley Railways Workers Union
    CA No. Nai. 29 of 2015
  • New Kenya Co-operative Creameries Ltd v. Olga Ouma Adede
    CA No. Nai. 316 of 2014
On appeal from
Environment & Land Court
ELCC No. 13 of 2009
Jurisdiction invoked
Rule 47(5) of the Court of Appeal Rules (inter partes hearing on the question of urgency); intended appeal under 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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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Bryan Yongo v Jigisha P. Jani & 2 others [2018] KECA 481 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/481/eng@2018-05-25

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