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Court of AppealOtherCivil Appeal (Application) E198 of 2022· [2022] KECA 536 (KLR)

Kenya National Capital Corporation Limited v Galot & 5 others

Court of Appeal
28 April 2022
KMK M'INOTI
1,488 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to fast-track KNAC's application because it lacked a notice of appeal and a supporting affidavit, confirming urgency is never automatic.

What this practically means

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Executive summary

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This is a single-judge ruling by K M'Inoti, JA, on an application by Kenya National Capital Corporation Limited for certification of urgency of a motion for stay of proceedings pending appeal from an order of Mabeya, J. in HCCC No. 2054 of 1993 dated 21 March 2021. The judge had earlier declined to certify the application urgent on 7 April 2022 for two reasons: the absence of an affidavit in support of urgency as required by rule 47(1) of the Court of Appeal Rules, and the absence of any notice of appeal against the High Court order. After an inter partes hearing on urgency at which all respondents opposed certification, the judge reaffirmed his earlier position. He held that a notice of appeal is a basic jurisdictional prerequisite for invoking the Court's jurisdiction under rule 5(2)(b), and that without it the Court has no jurisdiction to entertain the stay application, making it improper to certify it urgent. He further held that rule 47(1) mandatorily requires an affidavit in support of a certificate of urgency, and that urgency certification is a judicial discretion, not granted as of right. The application was once more not certified urgent, with costs abiding the outcome of the application. The substantive stay application remains for the full Court if the jurisdictional defects are cured.

Key legal issues

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01

Jurisdictional prerequisite of a notice of appeal

Holding

Without a notice of appeal on record, the Court has no jurisdiction to entertain an application for stay of proceedings under rule 5(2)(b), and such a matter cannot be certified urgent.

Reasoning

The applicant's 36-page electronic application lacked both a notice of appeal against the High Court order of 21 March 2021 and an affidavit supporting urgency. The judge held that certifying urgent a matter missing a jurisdictional document would be a failure of duty, relying on Safaricom Ltd v Ocean View Beach Hotel Ltd.

p. 3
02

Mandatory affidavit in support of urgency under rule 47(1)

Holding

Rule 47(1) requires in mandatory terms that a certificate of urgency be accompanied by an affidavit deposing to the grounds of urgency; a bare certificate does not suffice.

Reasoning

The court adopted its earlier reasoning in Sahit Investments Ltd v Josephine Akoth Onyango, emphasising that certification entitles a matter to jump the queue, and the affidavit requirement is informed by case-management considerations protecting earlier-filed applications from being relegated.

p. 3
03

Discretionary nature of urgency certification

Holding

Certification of urgency is a judicial discretion exercised judiciously, not granted as of right or as a matter of course.

Reasoning

Drawing on Jared Okello v Charles Otieno Opiyo, the court explained that urgent certification gives priority over earlier-filed matters, so the applicant must show the matter deserves priority hearing, guided by fairness to all litigants and case-management considerations.

p. 2

Legal principles established

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  • A notice of appeal is a basic jurisdictional requirement before the Court's jurisdiction under rule 5(2)(b) is invoked.
  • Certification of urgency is discretionary, not a matter of right, and requires an affidavit in support under rule 47(1).
  • A judge considering urgency must be satisfied the application meets the basic jurisdictional threshold.

Court orders

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  1. 1.Refusal to certify the application urgent
  2. 2.Costs to abide the outcome of the application

Authorities

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Legislation

  • Court of Appeal Rulesrule 47(1)
  • Court of Appeal Rulesrule 47(5)
  • Court of Appeal Rulesrule 5(2)(b)

Cases cited (4)

  • Benjoh Amalgamated Ltd v Kenya Commercial Bank Ltd & another
    (2018) eKLR

    Applicant placed no material to justify jumping the queue over prior pending applications

  • Jared Okello v. Charles Otieno Opiyo & 3 Others
    CA No. 151 of 2017

    Rationale for certifying applications urgent; priority must be deserved

  • Safaricom Ltd v. Ocean View Beach Hotel Ltd & 2 Others
    [2010] eKLR

    Court cannot certify urgent a matter where a jurisdictional document is missing

  • Sahit Investments Ltd. v. Josephine Akoth Onyango & 2 Others
    CA No. 27 of 2015 (UR 25/2015)

    Importance of the affidavit in support of urgency under rule 47(1)

On appeal from
High Court of Kenya at Nairobi
HCCC No. 2054 of 1993
Jurisdiction invoked
Rule 5(2)(b) and rule 47 of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya National Capital Corporation Limited v Galot & 5 others", Case Analysis (2022). Civil Appeal (Application) E198 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/536/eng@2022-04-28

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