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Court of AppealAllowedNot stated in the judgment· [2025] KECA 1743 (KLR)

Tome v Bubgoma County Assembly Service Board (CASB) & 2 others (Civil Application E110 of 2025) [2025] KECA 1743 (KLR)

Court of Appeal of Kenya
21 October 2025
ASAsike-Makhandia
634 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 ruled that a judge can review another judge's refusal to certify a case urgent, and unchallenged claims are accepted as true.

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 Kisumu, delivered by Asike-Makhandia, JA, on an application for leave to appeal to the Supreme Court under Article 163(4)(a) and (b) of the Constitution, which the applicant sought to have certified as urgent. The application was first placed before Omondi, JA as Duty Judge, who declined to certify it as urgent. Following an informal review request under Rule 55(2)(d) of the Court's Rules, the presiding judge initially directed that the urgency question be heard inter partes by Omondi, JA, but she recused herself on account of the applicant's complaints of bias, including the fact that she had sat on the bench that delivered the impugned judgment alongside Tuiyott and Kimaru, JJA. The matter was then referred to Kimaru, JA, who also declined to sit because the applicant had lodged a complaint against him with the Judicial Service Commission. Holding that he had jurisdiction under Article 159 of the Constitution and Sections 3A and 3B of the Appellate Jurisdiction Act to entertain the matter himself - not as an appeal from Omondi, JA's order - the judge proceeded on the basis of written submissions directed by the Deputy Registrar. The respondent, though served, filed nothing. Treating the applicant's uncontroverted material as true, the court certified the application as urgent, directed that it be listed for inter partes hearing on a priority basis, and made no order as to costs. The certification decision of the Single Judge was effectively superseded.

Key legal issues

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01

Jurisdiction of the Judge of Appeal to review a Single Judge's decision declining certification of urgency

Holding

The Judge of Appeal had jurisdiction to entertain the urgency application himself, not as an appeal from the impugned order of Omondi, JA, but in the interests of obviating further empanelment delays.

Reasoning

After Omondi, JA recused herself on the applicant's complaint of bias, and Kimaru, JA declined to sit owing to a Judicial Service Commission complaint against him, the matter fell back to the presiding Judge. Rather than transmit the file to the President of the Court to empanel another Single Judge, the Judge invoked Article 159 of the Constitution and Sections 3A and 3B of the Appellate Jurisdiction Act to entertain the matter himself, stressing he was not hearing an appeal from Omondi, JA's order.

p. 2
02

Whether the application met the threshold for certification as urgent

Holding

The application was certified urgent because the applicant's uncontroverted material stood unchallenged, the respondent having been served but filing no response or submissions.

Reasoning

Directions had been issued on 16th October, 2025 for the urgency question to be disposed of by written submissions without appearances. Only the applicant complied. The respondent, though served, filed nothing. In the absence of any rebuttal, the court accepted the applicant's averments as true and proceeded to certify the application urgent, directing an inter partes hearing on a priority basis.

p. 2

Legal principles established

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  • Where an applicant's uncontroverted averments, depositions and submissions stand unrebutted by a served party who files no response, the court may treat them as true for the purposes of an urgency certification.
  • A Judge of Appeal may entertain a request for review of a Single Judge's refusal to certify urgency directly, without constituting a full bench or empanelling another Single Judge through the President of the Court, invoking Article 159 of the Constitution and Sections 3A and 3B of the Appellate Jurisdiction Act.

Court orders

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  1. 1.The application is certified as urgent
  2. 2.The application be listed for inter partes hearing on a priority basis
  3. 3.No order as to costs

Authorities

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Legislation

  • Constitution of KenyaArticle 163(4)(a) and (b)
  • Constitution of KenyaArticle 159
  • Appellate Jurisdiction ActSections 3A & 3B
  • Court of Appeal RulesRule 55(2)(d)
  • Court of Appeal RulesRule 48(5)
Jurisdiction invoked
Article 163(4)(a) and (b) of the Constitution; Rule 55(2)(d) and Rule 48(5) of the Court of Appeal Rules; Article 159 of the Constitution; Sections 3A & 3B of the Appellate Jurisdiction Act

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, "Tome v Bubgoma County Assembly Service Board (CASB) & 2 others (Civil Application E110 of 2025) [2025] KECA 1743 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1743/eng@2025-10-21

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