[2018] KECA 238 (KLR)
The Court found that the applicant failed to demonstrate sufficient urgency to warrant certification of the Notice of Motion dated 21st June, 2018 as urgent. The reinstatement of the applicant to the Master's Degree programme by the respondents addressed the immediate concern, and any remaining issues could be...
Source-derived case information.
- Citation
- [2018] KECA 238 (KLR)
- Parties
- Appellant: Dr. Benjamin J. Gikenyi Magare; Respondent: Vice Chancellor, Moi University; Respondent: Moi University; Respondent: Dean, School of Medicine Moi University
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 73 of 2018
- Procedural Posture
- Civil Appeal / Interlocutory Application for Certification of Urgency
- Outcome
- Application for certification of urgency declined; application to be listed for hearing during the next session at Eldoret.
- Judges
- AM Githinji
- Legal Topics
- Judicial Review Procedure, Stay of Proceedings, Certification of Urgency
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dr. Benjamin J. Gikenyi Magare
Appellant
Vice Chancellor, Moi University
Respondent
Moi University
Respondent
Dean, School of Medicine Moi University
Respondent
Procedural Posture
Civil Appeal / Interlocutory Application for Certification of Urgency
Legal Issues
- 1 Whether the Notice of Motion dated 21st June, 2018 should be certified as urgent and heard on a priority basis.
- 2 Whether the reinstatement of the applicant to the Master's Degree programme renders the application non-urgent.
- 3 Whether the pending substantive judicial review application in the High Court affects the urgency of the application.
Ratio Decidendi
The Court found that the applicant failed to demonstrate sufficient urgency to warrant certification of the Notice of Motion dated 21st June, 2018 as urgent. The reinstatement of the applicant to the Master's Degree programme by the respondents addressed the immediate concern, and any remaining issues could be addressed in the ordinary course of the pending application. The Court also noted that the substantive judicial review application was still pending in the High Court, and there were few pending applications at the Eldoret station, making it reasonable to list the application for hearing during the next session. In the interest of justice, the Court directed that the application be...
Court Disposition
Application for certification of urgency declined; application to be listed for hearing during the next session at Eldoret.
Orders
- The Deputy Registrar is directed to list the Notice of Motion dated 21st June, 2018 for hearing by the full Court at Eldoret during the next session.
- Costs of this hearing shall be costs in the pending application.
Full Case Text
Judgment text and source record
26 paragraphs
IN THE COURT OF APPEAL
AT ELDORET
(CORAM: E. M. GITHINJI, JA. (IN CHAMBERS)
CIVIL APPEAL NO. 73 OF 2018
BETWEEN
DR. BENJAMIN J. GIKENYI MAGARE ......................................APPELLANT
AND
VICE CHANCELLOR, MOI UNIVERSITY.........................1ST RESPONDENT
MOI UNIVERSITY..................................................................2ND RESPONDENT
DEAN, SCHOOL OF MEDICINE MOI UNIVERSITY......3RD RESPONDENT
(Being an Appeal from the ruling and order of the High Court of Kenya at Eldoret, (H. A. Omondi, J.) dated 5th day of June, 2018 in Judicial Review Application No. 3 of 2018)
*******************************************
RULING
[1] On 17th July, 2018, I declined to certify the Notice of Motion dated 21st June, 2018 as urgent. On 31st August, 2018, the applicant’s advocate made an application that the certificate of urgency be heard inter partes.
[2] On 15th October, 2018, the Deputy Registrar placed the application before me after the applicant had written a long letter dated 11th October, 2018 addressed to the President of the Court of Appeal. Upon reading the letter, I directed that the certificate of urgency be heard inter partes today in Kisumu.
[3] The application for hearing of the certificate of urgency inter partes is supported by a lengthy affidavit of the applicant sworn on 30th August, 2018. The respondent has filed a replying affidavit sworn on 19th October, 2018 by Petrolina Chepkwony, the Senior Legal Officer of the 1st respondent. The 1st respondent in essence states that the application is not urgent since the applicant was reinstated to the Master’s Decree programme by a letter dated 4th October, 2018.
The applicant’s counsel admits that such a letter was received but states that the applicant’s name is still omitted from the list of candidates required to present oral thesis at the end of this month.
[4] I have considered the respective affidavits and the submissions of counsel. The applicant is appealing against an order of the High Court setting aside a stay order granted at leave stage. The substantive judicial review application is still pending for hearing in the High Court.
[5] In the premises, I am still not satisfied that the notice of motion dated 21st June, 2018 is urgent. However, since there are few pending applications in this Court Station at Eldoret, and since the applicant’s counsel agrees that the pending application can be heard during the next session of the Court at Eldoret, I would in the interest of justice direct that the application be heard during that session.
[6] In the premises, I direct the Deputy Registrar of the Court to list the Notice of Motion dated 21st June, 2018 for hearing by the full Court at Eldoret during the next session. The costs of this hearing shall be costs in the pending application.
DATED and Delivered at Kisumu this 22nd day of October, 2018.
E. M. GITHINJI
…………………….………
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR