[2021] KECA 421 (KLR)
The Court found that the application did not present any new material or compelling reason to warrant a change in the earlier decision refusing to certify the motion as urgent. The Judge emphasized that the application sought to strike out an appeal not before the Court of Appeal but pending before the Employment...
Source-derived case information.
- Citation
- [2021] KECA 421 (KLR)
- Parties
- Applicant: Milkah Mutheni Ndiku; Respondent: Technik Diesel Limited
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application E411 of 2020
- Procedural Posture
- Civil Application / Ruling on Urgency
- Outcome
- application for urgency certification refused
- Judges
- GK Oenga
- Legal Topics
- Urgency Certification, Striking Out Appeal, Appellate Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Milkah Mutheni Ndiku
Applicant
Technik Diesel Limited
Respondent
Procedural Posture
Civil Application / Ruling on Urgency
Legal Issues
- 1 Whether the application to strike out an appeal pending before the Employment and Labour Court is urgent and should be certified as such by a single Judge of the Court of Appeal.
- 2 Whether the matter should be placed before a three Judge Bench for consideration of urgency.
Ratio Decidendi
The Court found that the application did not present any new material or compelling reason to warrant a change in the earlier decision refusing to certify the motion as urgent. The Judge emphasized that the application sought to strike out an appeal not before the Court of Appeal but pending before the Employment and Labour Court, which further diminished the urgency or appropriateness of the application. Accordingly, the application was not certified as urgent and would be listed in the normal course of business.
Court Disposition
application for urgency certification refused
Orders
- The application is not urgent and shall be listed in the normal course of the business of the Court.
Full Case Text
Judgment text and source record
26 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
CORAM: KIAGE, J.A (IN CHAMBERS)
CIVIL APPLICATION NO. E411 OF 2020
BETWEEN
MILKAH MUTHENI NDIKU.................................. APPLICANT
AND
TECHNIK DIESEL LIMITED..............................RESPONDENT
(An application to strike out the appeal filed by respondent on the 19thday
of December 2019, E.L.R.C Appeal No. 65 of 2019 and the ruling and orders
dated 23. 9.2020 from the Judgment and Decree of the Chief Magistrate’s Court (Senior
Resident Magistrate Hon. D.O. Mbenja) dated 26thday of April, 2019)inELRC Cause No. 95 of 2018)
********************
RULING ON URGENCY
Following my non-certification of the motion dated 16th December 2020 as urgent, the applicant who is in person has indicated that she is “not in agreement with the decision of a single Judge/Magistrate” and seeks to have it considered urgent and placed before a three Judge Bench in the interests of justice.
The motion I refused to certify urgent is, with respect, a curiosity that seeks to strike out an appeal filed, not before this Court, but one that was filed and is pending before the Employment and Labour Court. The description of the application, as captured in the title, speaks to its oddity.
I have restrained myself from making any comment on the motion beyond what I have stated. It is enough for me to say that nothing has been placed before me to change my mind. The application is not urgent and it shall be listed in the normal course of the business of the Court.
Order accordingly.
DATED AT NAIROBI THIS 9TH DAY OF JULY, 2021.
P. O. KIAGE
....................................
JUDGE OF APPEAL
I certify that this is a
true copy of the original.
Signed
DEPUTY REGISTRAR