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Court of AppealOtherCivil Application (Nyeri) — Motion dated 26th December, 2018· [2019] KECA 3 (KLR)

Alex Muriithi Njiru & another v Prisca Njuura John [2019] KECA 3 (KLR)

Court of Appeal of Kenya
18 February 2019
SKS. ole Kantai
854 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 an eviction-related appeal because the applicants already had a stay and had vacated the premises.

What this practically means

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Executive summary

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This is an interlocutory ruling by ole Kantai, JA, of the Court of Appeal at Nyeri on an application by the applicants, by motion dated 26th December 2018, to have their motion certified as urgent under Rule 47 of the Court of Appeal Rules. The motion had first come before the judge on 21st January 2019, when he declined to certify it urgent; the second applicant, Joe H. Karanja, requested a hearing on urgency, and the application was listed inter partes. Counsel for the applicants argued that the respondent had moved to adopt a ruling of the Business Premises Rent Tribunal, established under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, as a judgment of the High Court and that the applicants faced eviction and loss of business goodwill. Counsel for the respondent countered that under Section 15 of the Shops Act Tribunal decisions lie to the High Court with no appeal to the Court of Appeal, that a stay had been granted in June 2018, and that the applicants had already vacated the premises. The court restated its policy that parties be heard on a first-come-first-heard basis and that Rule 47 is a safety valve for imminent danger of execution. Noting the procedural history — including the dismissal of a stay application by Angima, J in ELCA No. 32 of 2018 at Embu on 20th December 2018 — the judge held the application was not urgent, directed that it be listed in the usual way, and reserved the applicants' rights under Rule 55. He also expressed, without ruling, doubt whether Tribunal orders are appealable to the Court of Appeal.

Key legal issues

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01

Requirements for certification of urgency under Rule 47

Holding

The applicant must satisfy the court why the matter should be heard urgently; absent demonstrated imminent danger, the motion retains its place in the ordinary queue.

Reasoning

The court reiterated its policy that all parties be treated equally and heard on a first-come-first-heard basis. Rule 47 is a safety valve reserved for cases where imminent danger of execution means delay cannot be allowed. On the facts, the applicants had already obtained a stay in June 2018, had been given six months to vacate by the Tribunal, had lost a stay application before Angima J in the EL Court at Embu, and had already vacated the premises, so no urgency was made out.

p. 2
02

Whether decisions of the Business Premises Rent Tribunal are appealable to the Court of Appeal

Holding

The court expressed doubt, without ruling, whether orders arising from the Tribunal established under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act are appealable to the Court of Appeal, noting Section 15 of that Act.

Reasoning

Counsel for the respondent drew attention to Section 15 of the Shops Act, under which decisions of that Tribunal are available to the High Court but there is no appeal to the Court of Appeal. Counsel for the applicants urged that the Act should be read within the Constitution of Kenya 2010 and other laws. The judge declined to rule on the point, flagging it as a doubt only.

p. 2

Legal principles established

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  • An applicant seeking certification of urgency must demonstrate imminent danger of execution such that delay cannot be allowed; the urgency jurisdiction is an exception to the court's first-come-first-heard equality policy.

Court orders

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  1. 1.The application is not certified as urgent and shall be listed for hearing in the usual way
  2. 2.The applicants' rights reserved by Rule 55 of the Court's Rules are preserved

Authorities

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Legislation

  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (the Shops Act)Section 15
  • Court of Appeal RulesRule 47
  • Court of Appeal RulesRule 55
  • Constitution of Kenya, 2010

Cases cited (1)

  • Heritage Insurance Company Limited vs. Christopher Onyango, Civil Application No. NAI 110 of 2016
On appeal from
Environment and Land Court of Kenya at Embu
ELCA No. 32 of 2018
Jurisdiction invoked
Court of Appeal Rules — Rule 47 (certification of urgency) and Rule 55

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, "Alex Muriithi Njiru & another v Prisca Njuura John [2019] KECA 3 (KLR)", Case Analysis (2019). Civil Application (Nyeri) — Motion dated 26th December, 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/3/eng@2019-02-18

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