Benjoh Amalgamated Limited v Kenya Commercial Bank Limited & another [2018] KECA 617 (KLR)
The bottom line
#Kenya's Court of Appeal refused to fast-track Benjoh Amalgamated's review application, confirming urgency must be proven with evidence, not assumed.
What this practically means
#Executive summary
#Key legal issues
#Test for certification of urgency
The applicant must show compelling circumstances that the application and intended appeal would be rendered nugatory if not heard promptly; grounds for the substantive relief are not grounds for urgency
The court drew on prior decisions of the Court of Appeal holding that urgency certification requires demonstration that delay would render the application nugatory. It distinguished between grounds supporting review of a judgment and grounds supporting immediacy of hearing. The applicant's grounds addressed the merits of the intended review, not the necessity of preferential treatment, and the dispute had existed since 1992 without justifying the timing of the urgency claim.
Scope of a single judge's jurisdiction on urgency certification
The single judge may only determine whether material exists justifying priority hearing, and cannot delve into or form opinions on the substantive issues for the full Court
The court noted that most issues addressed by counsel were matters for the full Court hearing the application for review. The single judge's task is confined to deciding whether the application deserves to jump the queue, including over election petition appeals with constitutional and statutory timelines.
Nature of the discretion to certify urgency
It is a discretionary power not granted as a matter of course, to be exercised on evidence and reason
The court reiterated that urgency is not certified as a matter of course and that the discretion, like all judicial discretionary powers, must not be exercised arbitrarily, whimsically or capriciously but on the basis of evidence and reason, guided by fairness to all litigants and case management considerations.
Legal principles established
#- Certification of urgency is a discretionary power that must be exercised on the basis of evidence and reason, not arbitrarily, whimsically or capriciously
- To justify certification of urgency, an applicant must show circumstances tending to show that if the matter is not heard promptly, the application and intended appeal may be rendered nugatory
- Certifying a matter urgent means it gets priority over other matters, and before a matter is allowed to jump the queue it must be shown to deserve priority hearing
- A single judge's jurisdiction on a certificate of urgency does not extend to determining the merits of the application for review
Court orders
#- 1.Declined to certify the application for review urgent
- 2.Directed that the application be listed for hearing in the ordinary manner
- 3.Ordered that costs of the hearing shall abide the outcome of the application for review
- Jurisdiction invoked
- Rule 47(5) of the Court of Appeal Rules; discretionary power of a single judge to certify an application urgent
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benjoh Amalgamated Limited v Kenya Commercial Bank Limited & another [2018] KECA 617 (KLR)", Case Analysis (2018). Civil Application (Certificate of Urgency) in relation to Civil Appeals Nos. 107, 137 and 174 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/617/eng@2018-05-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.