[2001] KECA 22 (KLR)
The court found that the applicant failed to demonstrate sufficient urgency to warrant certification of the motion as urgent. The existence of a stay order by the superior court, which had neither lapsed nor been vacated, meant there was no imminent risk of sale or irreparable harm. The court was not satisfied that...
Source-derived case information.
- Citation
- [2001] KECA 22 (KLR)
- Parties
- Applicant: K.H. Osmond; Respondent: Daima Bank Limited; Respondent: Whitestone Auctioneers (K) Ltd.
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 137 of 2001
- Procedural Posture
- Stay Application / Application for Certification of Urgency Under Rule 47(5) of the Court of Appeal Rules
- Outcome
- Application for certification of urgency dismissed. Costs to the respondent.
- Legal Topics
- Stay of Execution, Certification of Urgency, Statutory Power of Sale
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
K.H. Osmond
Applicant
Daima Bank Limited
Respondent
Whitestone Auctioneers (K) Ltd.
Respondent
Procedural Posture
Stay Application / Application for Certification of Urgency Under Rule 47(5) of the Court of Appeal Rules
Legal Issues
- 1 Whether the motion for stay of execution should be certified as urgent under rule 47(5) of the Court of Appeal Rules.
- 2 Whether there is imminent risk of sale justifying urgency certification.
Ratio Decidendi
The court found that the applicant failed to demonstrate sufficient urgency to warrant certification of the motion as urgent. The existence of a stay order by the superior court, which had neither lapsed nor been vacated, meant there was no imminent risk of sale or irreparable harm. The court was not satisfied that the statutory power of sale notice's expiry alone constituted urgency, especially since the motion could have been filed earlier. Consequently, the application for certification of urgency was declined, and costs were awarded to the respondent.
Court Disposition
Application for certification of urgency dismissed. Costs to the respondent.
Orders
- The motion is not certified as urgent.
- Costs awarded to the respondent in any event.
Full Case Text
Judgment text and source record
21 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
CIVIL APPLICATION NO. 137 OF 2001 (UR. 75/2001)
K.H. OSMOND ...................................................................................... APPLICANT
AND
DAIMA BANK LIMITED ...................................................... 1ST RESPONDENT
WHITESTONE AUCTIONEERS (K) LTD. ........................ 2ND RESPONDENT
(Application for stay of execution in an intended appeal from the Judgment of the High
Court of Kenya at Nairobi - Milimani (Justice Gacheche) dated 12th day of July, 2000
in
H.C.C.C. NO. 3062 OF 1997)
****************
R U L I N G
This is a hearing (inter partes) for certification of the Motion dated 28 March, 2001 as urgent under rule 47(5) of the Rules. It is based on a notice exercising statutory power of sale which expires at the end of the month. If the motion had been filed in the ordinary course it could well have been heard long before now. There is also a stay by the superior court which has not lapsed or been vacated. Nor am I satisfied that there is any imminent sale.
In all the circumstances, I am not satisfied that the said motion be certified as urgent. Costs to the Respondent in any event.
Dated and delivered at Nairobi this 5th day of June, 2001.
A.A. LAKHA
....................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR