[2004] KECA 51 (KLR)
The court held that, despite the emotional pleas and the applicant's previous non-compliance with court orders, the particular circumstances of the dispute—specifically, the alleged ongoing destruction of the suit property and the risk of prejudicing the intended appeal—justified certification of the application as...
Source-derived case information.
- Citation
- [2004] KECA 51 (KLR)
- Parties
- Applicant: Peter Mwangi Mbuthia; Respondent: Samow Edin Osman; Respondent: Naftali Ruth Kinyua
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 38 of 2004
- Procedural Posture
- Civil Application / Application for Certification of Urgency
- Outcome
- Application certified as urgent.
- Legal Topics
- Certification of Urgency, Interlocutory Applications, Suit Property Preservation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Mwangi Mbuthia
Applicant
Samow Edin Osman
Respondent
Naftali Ruth Kinyua
Respondent
Procedural Posture
Civil Application / Application for Certification of Urgency
Legal Issues
- 1 Whether the application should be certified as urgent in light of alleged destruction of suit property.
- 2 Whether the applicant's failure to comply with previous court orders affects entitlement to urgency certification.
Ratio Decidendi
The court held that, despite the emotional pleas and the applicant's previous non-compliance with court orders, the particular circumstances of the dispute—specifically, the alleged ongoing destruction of the suit property and the risk of prejudicing the intended appeal—justified certification of the application as urgent. The court emphasized that judicial discretion should not be influenced by emotions but must consider the need for expeditious resolution where warranted by the facts. Accordingly, the application was certified as urgent to ensure that the substantive issues could be addressed without further risk to the subject matter of the appeal.
Court Disposition
Application certified as urgent.
Orders
- The application is hereby certified as urgent.
Full Case Text
Judgment text and source record
19 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
CIVIL APPLICATION NO. NAI 38 OF 2004
PETER MWANGI MBUTHIA ………………………..……………………APPLICANT
AND
1. SAMOW EDIN OSMAN )
2. NAFTALI RUTH KINYUA )……......………………………............…….RESPONDENTS
RULING
On 2nd March, 2004, this Motion was placed before me for directions under rule 47 of the Court of Appeal Rules. I declined to certify the application as urgent.
Pursuant to a petition to the Deputy Registrar this application for urgency was argued before me on 8th March, 2004. Both Mr. Wandaka, for the applicant, and Mr. Njiru, for the second respondent, made very emotional pleas to me to have the matter certified as urgent. They averred that there has been a massive destruction of the suit property and a further delay would jeopardise the outcome of an intended appeal. Mr. Lakicha, on the other hand, did not believe that the application warranted any urgency and stressed that the applicant was at fault since he did not comply with the orders of the superior court.
Judicial decisions are not made whimsically or capriciously and emotions are not benchmarks of any judicial considerations. I will not be swayed by them. However, I have reconsidered the Motion once again. Disputes such as these ought to be disposed of expeditiously, one way or the other. Public policy demands so. But, Court’s programmes should not be outstretched on flimsy grounds.
Due to the particular circumstances of the dispute I think that I should certify the application as urgent and I hereby do so.
Dated and delivered at Nairobi this 10th day of March, 2004.
P.K. TUNOI
………………
JUDGE OF APPEAL
I certify that this is
a true copy of the original.
DEPUTY REGISTRAR