[2001] KECA 317 (KLR)
The court declined to certify the motion as urgent because the reasons advanced by the applicant's counsel for the delay in filing the motion were not contained in any affidavit before the court. The court emphasized that only facts properly placed on record through affidavits can be considered in determining such...
Source-derived case information.
- Citation
- [2001] KECA 317 (KLR)
- Parties
- Applicant: Kenya Posts & Telecommunications Corporation; Respondent: Francis Waithaka Ngokonyo; Respondent: Sudi Abdalla; Respondent: Andrew Muga
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 162 of 2001
- Procedural Posture
- Stay Application / Application for Certification of Urgency in the Court of Appeal Pending Intended Appeal
- Outcome
- Motion for certification of urgency declined.
- Legal Topics
- Stay of Execution, Urgency Certification, Appeal Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Posts & Telecommunications Corporation
Applicant
Francis Waithaka Ngokonyo
Respondent
Sudi Abdalla
Respondent
Andrew Muga
Respondent
Procedural Posture
Stay Application / Application for Certification of Urgency in the Court of Appeal Pending Intended Appeal
Legal Issues
- 1 Whether the motion for stay of execution should be certified as urgent.
- 2 Whether facts not deponed in affidavits can be considered in determining urgency.
Ratio Decidendi
The court declined to certify the motion as urgent because the reasons advanced by the applicant's counsel for the delay in filing the motion were not contained in any affidavit before the court. The court emphasized that only facts properly placed on record through affidavits can be considered in determining such applications. Arguments from the bar unsupported by affidavit evidence are not admissible for the purposes of establishing urgency or any other factual matter in interlocutory applications.
Court Disposition
Motion for certification of urgency declined.
Orders
- The motion is not certified as urgent.
Full Case Text
Judgment text and source record
24 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: BOSIRE,J.A (IN CHAMBERS)
CIVIL APPLICATION NO. NAI.162 OF 2001 (UR.86/2001)
BETWEEN
KENYA POSTS & TELECOMMUNICATIONS CORPORATION.............APPLICANT
AND
FRANCIS WAITHAKA NGOKONYO
SUDI ABDALLA
ANDREW MUGA ................................................................................RESPONDENTS
(An application for stay of execution pending the
lodging, hearing and determination of an intended
appeal from the judgment of the High Court of Kenya
at Milimani (Justice Andrew Hayanga) dated 11th
April 2001
in
H.C.C.C. No.357 of 1992 consolidated with
H.C.C.C. No.412 of 1992 and H.C.C.C. No.811 of 1992)
****************************************
RULING
Mr Kipkorir for the applicant now says that this motion sought to be heard on priority basis, could not be filed promptly because the lower court record was not readily available because a Judge's secretary who had custody of it and who had locked it up in her drawer, was away on sick leave. However, the foregoing facts having not been deponed to in either the affidavit in support of the certificate of urgency or the one in support of the motion there is no way such new facts given from the bar could have been the subject matter of my consideration when the motion was placed before me for directions on urgency. In view of that and considering that those facts are not properly on record, I will decline to certify the motion as urgent.
Dated and delivered at Nairobi this 30th day of May, 2001.
S.E.O. BOSIRE .................. JUDGE OF APPEAL
I certify that this is a true copy of the original. DEPUTY REGISTRAR