[2014] KECA 314 (KLR)
The court found that the dispute concerns the supply of foodstuff and essential commodities to a boarding school, which is a matter of immediate concern. The applicant demonstrated that the continued supply of goods under a challenged procurement process could affect its interests. Given the nature of the goods and...
Source-derived case information.
- Citation
- [2014] KECA 314 (KLR)
- Parties
- Applicant: Bura Secondary School; Respondent: The Procurement Administrative Review Board; Respondent: Abdi Buthul Shafat t/a Bura Enterprises
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 207 of 2014
- Procedural Posture
- Civil Application / Application for Certification of Urgency in Injunction and Stay Pending Appeal
- Outcome
- Application for certification of urgency allowed.
- Judges
- SP Ouko
- Legal Topics
- Injunctions, Stay of Execution, Procurement Disputes, Urgency Certification
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bura Secondary School
Applicant
The Procurement Administrative Review Board
Respondent
Abdi Buthul Shafat t/a Bura Enterprises
Respondent
Procedural Posture
Civil Application / Application for Certification of Urgency in Injunction and Stay Pending Appeal
Legal Issues
- 1 Whether the application for injunction and stay of execution should be certified as urgent.
- 2 Whether continued supply of goods to the applicant pending determination of the procurement dispute would prejudice the applicant.
Ratio Decidendi
The court found that the dispute concerns the supply of foodstuff and essential commodities to a boarding school, which is a matter of immediate concern. The applicant demonstrated that the continued supply of goods under a challenged procurement process could affect its interests. Given the nature of the goods and the potential impact on the applicant, the court was persuaded that the application for injunction and stay of execution should be heard urgently. Therefore, the motion was certified as urgent to ensure the dispute is resolved without undue delay.
Court Disposition
Application for certification of urgency allowed.
Orders
- The motion dated 11th August, 2014 is certified as urgent.
- Costs in the application.
Full Case Text
Judgment text and source record
31 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: OUKO, J.A (IN CHAMBERS)
CIVIL APPLICATION NO. NAI. 207 OF 2014 (UR 163/2014)
BETWEEN
BURA SECONDARY SCHOOL…………………...........................................…….APPLICANT
AND
THE PROCUREMENT ADMINISTRATIVE REVIEW BOARD…..................1STRESPODENT
ABDI BUTHUL SHAFAT T/ABURA ENTERPRISES……………………...2NDRESPODENT
(An application for injunction pending the hearing and determination of an intended appeal from the judgment and decree of the High Court of Kenya at Nairobi (Odunga, J.) delivered on 14thday of July 2014
in
HC. MISC. NO. 65 OF 2014)
********
RULING
On 12th August 2014, the applicant, being aggrieved by the decision of the High Court, (Odunga, J.) rendered on 14th July, 2014, filed a Notice of Motion under certificate of urgency for orders of injunction and stay of execution underRule 5 (2) (b)of the Court of Appeal Rules.
The application was placed before me for a certificate that it is urgent and therefore ought to be heard without delay.
Upon considering the affidavit in support of the certificate of urgency, I formed the opinion that it did not disclose any urgency and declined to certify the application urgent.
Hassan N. Lakicha & Company Advocates, representing the applicant, pursuant to the provisions of Rule 47 (5) of the Court’s Rules has informally, by a letter dated 25th September, 2014, applied to have the issue of urgency heard inter partes.
Rule 47 (5)aforesaid, is designed to give the Judge another opportunity having heard both sides to reconsider his or her decision to reject the certificate of urgency.
In so reconsidering the application afresh, Court exercises a discretion based on sound reason and the interest of justice.
Mr. Lakicha has explained that if the application for injunction and stay of execution is not heard urgently, the 2nd respondent will continue to supply the applicant with goods, yet the procurement process, the basis of the supply, is being challenged.
Ms. Matunda for the 2nd respondent was of the view that the matter is not urgent because the 2nd respondent has over the years supplied the applicant with food stuff and the continued supply before the application for injunction is heard will not prejudice the applicant.
It is clear what is involved in the dispute is the supply of food stuff and other essential commodities to the applicant, a boarding school. Because of this, the applicant has persuaded me that there is merit to have the dispute resolved without further day.
Consequently, I now certify urgent the motion dated 11th August, 2014. Costs in the application.
Dated and delivered at Nairobi this 17thday of October 2014.
W. OUKO
………………….....
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR.
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