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Court of AppealDismissedCivil Application (Certificate of Urgency) in relation to Civil Appeals Nos. 107, 137 and 174 of 2010· [2018] KECA 617 (KLR)

Benjoh Amalgamated Limited v Kenya Commercial Bank Limited & another [2018] KECA 617 (KLR)

Court of Appeal of Kenya
11 May 2018
1,536 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 Benjoh Amalgamated's review application, confirming urgency must be proven with evidence, not assumed.

What this practically means

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Executive summary

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This is a ruling by a single judge of the Court of Appeal, M'inoti JA, on whether to certify urgent an application by Benjoh Amalgamated Ltd for review of the Court of Appeal judgments of 15th December 2017 and 10th March 1998 in long-running litigation with Kenya Commercial Bank over a contested 1992 consent order acknowledging indebtedness. The applicant had also sought certification of the matter as one of general public importance under Article 163(4)(b) but abandoned that alternative prayer by letter dated 12th March 2018. The dispute dates to 1992, has passed through all levels of the superior courts including the Supreme Court, and has spawned roughly fourteen suits. The court set out the governing principles: certification of urgency is a discretionary power exercised on evidence and reason, not as a course; urgency means jumping the queue over other matters, including election petition appeals with fixed timelines; and the applicant must show that delay would render the application nugatory. The single judge held that his jurisdiction did not extend to the merits of the review, and that the grounds advanced by the applicant were grounds for review rather than grounds for immediacy. The court had previously declined certification on 20th February 2018 and did so again, directing the application to be heard in the ordinary manner, with costs of the hearing to abide the outcome of the review application.

Key legal issues

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01

Test for certification of urgency

Holding

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

Reasoning

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.

p. 2
02

Scope of a single judge's jurisdiction on urgency certification

Holding

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

Reasoning

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.

p. 2
03

Nature of the discretion to certify urgency

Holding

It is a discretionary power not granted as a matter of course, to be exercised on evidence and reason

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.Declined to certify the application for review urgent
  2. 2.Directed that the application be listed for hearing in the ordinary manner
  3. 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

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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, "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.