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Court of AppealAllowedNot stated in the judgment

Opiyo v Odhialo (Civil Application E056 of 2026) [2026] KECA 1444 (KLR)

Court of Appeal of Kenya
15 July 2026
ASAsike-Makhandia
333 words in judgment
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The bottom line

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Kenya's Court of Appeal reversed its own refusal to treat an appeal as urgent after the other side failed to respond, showing unopposed applications can succeed.

What this practically means

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Executive summary

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This is a brief interlocutory ruling by Asike-Makhandia, JA, sitting as the duty judge of the Court of Appeal at Kisumu, on the certification of urgency of an application by Jeremiah Odiwuor Opiyo seeking injunction, stay of execution and status quo ante orders concerning a suit property. The application, dated 17th March 2026 and lodged under certificate of urgency, had been placed before the duty judge on the same day, who declined to certify it as urgent. Aggrieved, the applicant invoked Rule 49(5) of the Court of Appeal Rules by letter dated 26th June 2026 seeking an inter partes hearing limited to the question of urgency. The judge directed that the issue be canvassed by written submissions only, without physical or virtual appearance. Only the applicant complied; the respondent, though served, filed neither affidavit nor submissions. The judge therefore accepted the applicant's uncontroverted averments, held that the application was indeed urgent, reviewed and set aside his earlier order refusing certification, certified the application urgent, and directed the registry to set it down for inter partes hearing urgently. No costs order was made and the substantive application remains to be heard. The decision concerns interlocutory practice and procedure rather than the merits.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the court should review and set aside its earlier order declining to certify the application as urgent
  2. 2.Whether the application is indeed urgent and should be set down for inter partes hearing

Key legal issues

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01

Review of the duty judge's refusal to certify an application urgent

Holding

After an inter partes consideration limited to urgency under Rule 49(5), and in the absence of any response from the respondent, the judge was persuaded the application was urgent and set aside his earlier certification refusal

Reasoning

The application was lodged under certificate of urgency and placed before the duty judge, who declined certification. The applicant invoked Rule 49(5) to have the question of urgency determined inter partes by written submissions only. Only the applicant filed submissions despite service on the respondent. The court therefore accepted the applicant's uncontroverted averments, found the application urgent, and exercised its discretion to review and set aside the earlier order.

p. 2

Legal principles established

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  • An uncontroverted application for certification of urgency may be taken as true, and a duty judge may review and set aside their own refusal to certify an application as urgent under Rule 49(5) of the Court of Appeal Rules

Court orders

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  1. 1.Review and setting aside of the earlier order refusing to certify the application as urgent
  2. 2.Certification of the application as urgent
  3. 3.Direction to the registry to set the application down for inter partes hearing urgently

The bench

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One judgment of the whole court — no separate or dissenting opinions.

AS
majority

Wrote the judgment

Jurisdiction invoked
Rule 49(5) of the Court of Appeal Rules (review of a certification decision by the duty judge)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

I am therefore now persuaded that the application is indeed urgent. In the result, I review and set aside my earlier order refusing to certify the application urgent.
p. 2Final orders - review of certification decision
Accordingly, I will take it that what the applicant has averred and deponed to in support of certification is true as it has not been discounted or countenanced.
p. 2Effect of an unopposed application
In lieu therefore, I now certify the application urgent and direct the registry to set it down for interpartes hearing urgently.
p. 2Final orders - certification

Issues in the judgment

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minor

The judgment is a short single-judge certification ruling; the respondent's name, the case number and the underlying suit are not identified anywhere in the text

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, "Opiyo v Odhialo (Civil Application E056 of 2026) [2026] KECA 1444 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1444/eng@2026-07-15

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