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Court of AppealDismissed· [2018] KECA 765 (KLR)

Reuben Warui Mwangi & another v Geoffrey Kuria Githambu & another [2018] KECA 765 (KLR)

Court of Appeal of Kenya
23 February 2018
AMA.K. Murgor
1,093 words in judgment
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The bottom line

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The Court of Appeal refused to fast-track a stay application filed four years late, ruling that a case management date does not create real urgency.

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 by Murgor, J.A., delivered on 23rd February 2018, determining whether an application by Reuben Warui Mwangi and Mercy Wanjiru Warui should be certified urgent. The applicants, who purchased Title LR No. Ndumberi/Ndumberi/1594 at a public auction in August 2006 after the 1st respondent, Geoffrey Kuria Githambu, defaulted on loan payments, sought leave to file a defence and to set aside an interlocutory judgment entered against them. The High Court (Mabeya, J.) declined by a ruling of 21st February 2014, finding no evidence of the sale and observing that six years was a long time to wait to seek justice. The applicants filed a notice of appeal and, much later, a notice of motion dated 16th January 2018 seeking certification of urgency and a stay of proceedings in High Court Civil Case No. 34 of 2006, premised on a case management conference scheduled for March 2018. The applicants argued they would be locked out of defending the suit. The 1st respondent opposed, noting the suit was still pending and the applicants had not been barred from participating. Applying Equip Agencies Limited v Akber Abdulahi Kassam Esmail & 4 Others, Murgor, J.A. held that an applicant must demonstrate exigent circumstances and risk of harm necessitating immediate action, and that speculative justifications do not suffice. The applicants had delayed some four years after the ruling, produced no evidence of the case management date, and case management cannot be equated to a hearing. The court declined to certify the matter urgent and directed that it be listed for hearing in the normal manner. No costs order was made. The decision below was not disturbed at this interlocutory stage.

Key legal issues

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01

The test for certification of urgency before a single judge of the Court of Appeal

Holding

The applicant must demonstrate something pressing by reason of risk or peril of harm or loss necessitating immediate action; exigent circumstances must be shown, failing which the applicant stands to suffer irreparable loss

Reasoning

The court adopted Kiage, J.A.'s statement in Equip Agencies as the governing standard. Urgency must arise from genuine exigent circumstances requiring prompt expeditious determination. Justifications that are inherently farfetched or speculative do not suffice. The applicants instead sat on their hands for four years after the ruling before being galvanized into action by the respondent's pursuit of case management, which cannot found urgency.

p. 3
02

Whether delay of approximately four years since the impugned ruling is inconsistent with a claim of urgency

Holding

Yes. If a stay of proceedings was not urgent when the ruling was delivered, urgency does not arise years later merely because the suit has been fixed for case management

Reasoning

The ruling was rendered on 21st February 2014, the motion was filed on 17th January 2018, some four years later. The court reasoned that the applicants' only stimulus was the 1st respondent moving to fix the suit for case management, supported by no evidence. The court held that the claimed urgency was speculative and declined to certify the application urgent.

p. 3

Legal principles established

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  • An applicant seeking certification of urgency or a single judge's intervention must demonstrate pressing circumstances involving risk or peril of harm or loss requiring immediate action; speculative or farfetched justifications for urgency will not suffice, and inordinate delay defeats an urgency claim
  • A case management conference is not a hearing; a suit listed for case management does not face imminent hearing and determination such as to create urgency for a stay

Court orders

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  1. 1.The application was not certified urgent
  2. 2.The matter shall be listed for hearing in the normal manner

Authorities

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Cases cited (1)

  • Equip Agencies Limited vs Akber Abdulahi Kassam Esmail & 4 Others
    [2013] eKLR
On appeal from
High Court of Kenya
High Court Civil Case No. 34 of 2006 (ruling delivered 21st February 2014)
Jurisdiction invoked
Inherent appellate case-management jurisdiction of a single Judge of Appeal to certify a matter urgent under the Court of Appeal procedure

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, "Reuben Warui Mwangi & another v Geoffrey Kuria Githambu & another [2018] KECA 765 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/765/eng@2018-02-23

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