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Court of AppealAllowedNot stated in the judgment· [2020] KECA 821 (KLR)

Company For Habitat And Housing In Africa (Shelter Afrique) v Sunset Paradise APA [2020] KECA 821 (KLR)

Court of Appeal of Kenya
3 April 2020
AMA.K. Murgor
700 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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The Court of Appeal certified Shelter Afrique's injunction application urgent after an attempted attachment of its property showed real, imminent harm.

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, JA, on a review of the court's earlier refusal to certify a matter as urgent. The applicant, Shelter Afrique, had filed a Notice of Motion dated 12th February 2020 seeking an injunction to restrain the respondent, Sunset Paradise Apa, from proceeding with warrants of attachment in execution of a High Court decree dated 23rd January 2020. On 13th February 2020 the judge declined to certify the matter urgent because no urgent circumstances were presented and no particulars of urgency were outlined. The applicant sought a review under rule 47(5) of the Court of Appeal Rules. In support, the applicant relied on the respondent's extraction of warrants of attachment, the proclamation of its goods on 6th February 2020, and an attempted attachment of its property on 14th February 2020 which failed only because the applicant invoked immunity under the Shelter-Afrique Act, Cap 493C. Counsel for the applicant warned of potential conflict between the Kenya Police and the Diplomatic Police if execution continued. The respondent opposed, noting a similar application had been dismissed in the High Court and that the applicant failed to demonstrate urgency or explain delay. The court reiterated that an applicant for urgency must demonstrate urgency, observed that the original certificate was unsupported by a sworn affidavit and devoid of particulars, but concluded that the circumstances now shown - imminent attachment of property - warranted certification. The application was certified urgent. No costs order was made.

Key legal issues

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01

Requirements for a certificate of urgency on review

Holding

The court on review may certify urgency where the circumstances warrant it; the original certificate failed because it was unsupported by a sworn affidavit and lacked particulars of urgency, but the subsequent material, including the attempted attachment of the applicant's property, demonstrated urgency.

Reasoning

The single judge had initially declined to certify urgency because no particulars were presented. On review, the court examined the pleadings and submissions, noted the imminent execution against the applicant's property following extraction of warrants of attachment and the attempted attachment of 14th February 2020, and concluded that the circumstances warranted certification as urgent.

p. 2
02

Support of a certificate of urgency by affidavit and particulars

Holding

A certificate of urgency not supported by a sworn affidavit, with no particulars of urgency, makes it impossible to ascertain urgency.

Reasoning

The court found that the application for urgency dated 12th February 2020 was not supported by a sworn affidavit and therefore furnished no particulars supporting urgency. This evidentiary deficiency was the stated reason the matter could not initially be certified urgent, underscoring that urgency must be substantiated, not merely asserted.

p. 2

Legal principles established

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  • An applicant seeking certification of urgency must demonstrate that the application sought to be heard is indeed urgent

Court orders

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  1. 1.The application is certified as urgent

Authorities

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Legislation

  • Court of Appeal RulesRule 47(5)
  • Shelter-Afrique Act, Cap 493CSection 3 of the Schedule
On appeal from
High Court
Not stated in the judgment
Jurisdiction invoked
Rule 47(5) of the Court of Appeal Rules (review of refusal to certify a matter as 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, "Company For Habitat And Housing In Africa (Shelter Afrique) v Sunset Paradise APA [2020] KECA 821 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/821/eng@2020-04-03

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