Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealOtherCivil Application (rule 49 certificate of urgency) arising from Civil Appeal No 184 of 2004· [2023] KECA 1506 (KLR)

Nesco Services Limited & 1 other v Peter Mujunga Gathuru

Court of Appeal of Kenya
8 December 2023
MNMumbi Ngugi
1,611 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

The Court of Appeal refused to fast-track Nesco Services' review application, holding that nine years of inaction, old age, and financing needs don't create legal urgency.

What this practically means

#

Executive summary

#
This is a single-judge ruling of the Court of Appeal, Nairobi, delivered by Mumbi Ngugi, JA on December 8, 2023, determining whether the application dated November 21, 2023 by Nesco Services Limited and Harun Osoro Nyambuki should be certified urgent under rule 49 of the Court of Appeal Rules. The applicants sought review of the Court's judgment of January 30, 2015 in Civil Appeal No 184 of 2004, which ordered registration of a caveat against LR No 12767/11, property they say had already been transferred by the 2nd applicant to the 1st applicant in 2001. Counsel for the applicants, Mr Manyara, argued that the caveat had blocked the 1st applicant, a real estate investor, from obtaining financing (including a refused I&M Bank facility), and that the elderly directors wished to settle their affairs. The respondent did not appear despite service, and had himself filed a separate review application, Civil Application No E198 of 2022, seeking transfer of two and a half acres instead of market value. The judge declined certification of urgency, holding that the 2nd applicant, a party to the 2015 appeal, had done nothing for almost nine years, and that advanced age of litigants or a corporate need for financing are not sufficient grounds for priority hearing. The judge conditionally directed that the application may be consolidated with Civil Application No E198 of 2022 if that application has been certified urgent. No costs order was made.

Key legal issues

#
01

Whether the application met the threshold for certification as urgent under rule 49

Holding

The application was not certified urgent. A party to an appeal who sat on its rights for almost nine years cannot claim urgency, and the grounds advanced (age of directors, need for loan facilities) are insufficient.

Reasoning

The judge reviewed rule 49 and the supporting affidavit and submissions. The 2nd applicant was a party to the 2015 appeal and could have sought review at any time but did not. The arguments presented did not satisfy the Court that there was any urgency meriting priority hearing. Inactivity of almost nine years negates urgency, and personal or commercial convenience is not urgency.

p. 3
02

Whether the application should be consolidated with the respondent's pending review application

Holding

The court gave a conditional direction: if Civil Application No E198 of 2022 has been certified urgent, this application may be placed before that bench for consolidation and hearing together.

Reasoning

Both applications relate to the same judgment of January 30, 2015 and the same property (two and a half acres out of LR No 12767/11), and share at least some of the same parties. The judge noted this was on counsel's account, as the other application was not before him, and left the matter to the bench hearing that application.

p. 3

Legal principles established

#
  • A single judge's refusal to certify an application as urgent is not subject to a reference to the Court under rule 55; the applicant may only apply informally for placement before a single judge inter partes
  • Advanced age of a litigant or a corporate applicant's need for financing for real estate development do not constitute sufficient grounds for certification of urgency

Court orders

#
  1. 1.The application dated November 21, 2023 was not certified urgent and was not to be heard on a priority basis
  2. 2.A direction that, if Civil Application No E198 of 2022 has been certified urgent, the present application may be placed before the bench hearing that application for consolidation and hearing together
On appeal from
Court of Appeal of Kenya
Civil Appeal No 184 of 2004
Jurisdiction invoked
Rule 49 of the Court of Appeal Rules - single judge certification of urgency of an application

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (6)

#

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

Cite this brief

#

Cite this brief

Caselaw, "Nesco Services Limited & 1 other v Peter Mujunga Gathuru", Case Analysis (2023). Civil Application (rule 49 certificate of urgency) arising from Civil Appeal No 184 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1506/eng@2023-12-08

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