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Court of AppealOtherCivil Application E080 of 2024· [2024] KECA 979 (KLR)

Kabiru & 3 others v Njau (Civil Application E080 of 2024) [2024] KECA 979 (KLR)

Court of Appeal
26 July 2024
SKS. Gatembu Kairu
315 words in judgment
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The bottom line

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The Court of Appeal refused to fast-track a delayed appeal application, ruling that urgency cannot be claimed over a judgment that is over a year old.

What this practically means

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Executive summary

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This is a short procedural ruling of the Court of Appeal, Nairobi, delivered by S. Gatembu Kairu, JA, on 26th July 2024. The applicants had sought leave to file and serve a notice of appeal and Memorandum and Record of Appeal out of time, targeting a judgment of the Environment and Land Court delivered on 18th April 2023. On 1st March 2024 the judge had refused to certify their application dated 22nd February 2024 as urgent. Four months later, the applicants' advocates wrote to the Deputy Registrar on 1st July 2024 requesting an inter partes hearing under Rule 49(5) of the Court of Appeal Rules. The matter came before the judge on 15th July 2024; counsel Mr. Njeru appeared for the applicants, but there was no appearance for the respondent despite service of the hearing notice. Reconsidering the certificate of urgency by David Njeru Nyaga, the supporting affidavit sworn on 22nd February 2024, and counsel's submissions, the court remained unpersuaded that sufficient grounds justified fast-tracking. It applied the test stated in Kenya Medical Supplies Agency v Revital Health Care (EPZ) Limited, that urgency arises where an event requires contemporaneous resolution whose absence would cause extreme prejudice. Given that the ELC decision was over a year old and the application was not lodged until February 2024, no urgency was shown. The court directed that the application be fixed for hearing in the normal course. No costs order was made, and the substantive application for extension of time remains pending before the Court.

Key legal issues

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01

Whether the application qualified for urgent certification and fast-tracking

Holding

It did not; the application was filed months after a prior refusal and over a year after the impugned judgment, showing no event requiring contemporaneous resolution

Reasoning

The court restated the test for urgency from Kenya Medical Supplies Agency v Revital Health Care: urgency requires an event demanding contemporaneous resolution whose absence would cause extreme prejudice. Here the ELC judgment was delivered on 18th April 2023, the application was not made until February 2024, and the judge had already refused certification on 1st March 2024. The applicants sought an inter partes hearing under Rule 49(5) but on reconsideration of the certificate of urgency, affidavit and submissions, no sufficient grounds for fast-tracking were made out.

p. 2

Legal principles established

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  • Urgency arises only when an event occurs requiring contemporaneous resolution, the absence of which would cause extreme prejudice; a delay of over a year before seeking relief is inconsistent with urgency

Court orders

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  1. 1.Refusal to certify the application dated 22nd February 2024 as urgent
  2. 2.Direction that the application be fixed for hearing in the normal course

Authorities

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Legislation

  • Court of Appeal RulesRule 49(5)

Cases cited (1)

  • Kenya Medical Supplies Agency vs. Revital Health Care (EPZ) Limited and 2 others
    Civil Appeal No. 65 of 2016
On appeal from
Environment and Land Court (ELC)
Jurisdiction invoked
Rule 49(5) of the Court of Appeal Rules (inter partes hearing of an application for leave to file appeal out of time)

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, "Kabiru & 3 others v Njau (Civil Application E080 of 2024) [2024] KECA 979 (KLR)", Case Analysis (2024). Civil Application E080 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/979/eng@2024-07-26

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