[2020] KECA 703 (KLR)
The court found that the applicant failed to demonstrate any current urgency justifying certification of the motion for priority hearing. The High Court's eviction order was issued approximately six years prior, and the applicant's notice of appeal was struck out over three years ago. The applicant did not take...
Source-derived case information.
- Citation
- [2020] KECA 703 (KLR)
- Parties
- Applicant: Trustees of the Kenya Assemblies of God; Respondent: Suresg Kumar Sofat; Respondent: Sanida Soffat; Respondent: County Government of Nairobi (Former Nairobi City Council)
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 384 of 2019
- Procedural Posture
- Civil Application / Application for Certification of Urgency and Extension of Time to Re Lodge Notice of Appeal
- Outcome
- Application for certification of urgency declined; motion to be heard in ordinary course.
- Judges
- GG Okwengu
- Legal Topics
- Extension of Time, Certification of Urgency, Eviction Orders, Notice of Appeal, Title Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Trustees of the Kenya Assemblies of God
Applicant
Suresg Kumar Sofat
Respondent
Sanida Soffat
Respondent
County Government of Nairobi (Former Nairobi City Council)
Respondent
Procedural Posture
Civil Application / Application for Certification of Urgency and Extension of Time to Re Lodge Notice of Appeal
Legal Issues
- 1 Whether the applicant has demonstrated sufficient urgency to warrant certification of the motion for priority hearing.
- 2 Whether the applicant is entitled to extension of time to re-lodge the notice of appeal and file the record of appeal out of time.
Ratio Decidendi
The court found that the applicant failed to demonstrate any current urgency justifying certification of the motion for priority hearing. The High Court's eviction order was issued approximately six years prior, and the applicant's notice of appeal was struck out over three years ago. The applicant did not take prompt action following these events, and there was no evidence of recent developments that would render the matter urgent at this stage. The court held that urgency, if any, arose at the time of the eviction order or when the notice of appeal was struck out, not years later. Consequently, the court declined to certify the motion as urgent and affirmed its earlier order to that...
Court Disposition
Application for certification of urgency declined; motion to be heard in ordinary course.
Orders
- The earlier order declining to certify the motion as urgent is affirmed.
- The motion may be fixed for hearing in accordance with the Court diary.
Full Case Text
Judgment text and source record
30 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: OKWENGU JA (IN CHAMBERS)
CIVIL APPLICATION NO. 384 OF 2019
BETWEEN
TRUSTEES OF THE KENYA ASSEMBLIES OF GOD.........................APPLICANT
AND
SURESG KUMAR SOFAT.............................................................1STRESPONDENT
SANIDA SOFFAT...........................................................................2NDRESPONDENT
COUNTY GOVERNMENT OF NAIROBI
(FORMER NAIROBI CITY COUNCIL)......................................3rdRESPONDENT
(Being an application for leave to extend time re-lodge the notice ofappeal, ending the lodging and hearing of the intended appeal against the Ruling of the High Court of Kenya at Nairobi (P. Nyamweya, J.) delivered on 3rdMarch, 2014 and amended on 19thMarch, 2014
in
ELC. No. 402 of 2013)
******************
RULING
[1] On the 18th December, 2019, a notice of motion dated 2nd December, 2019 filed by the applicant was placed before me under certificate of urgency for certification under rule 41 and 47 of the Court of Appeal rules. Apart from certification, the applicant sought leave to re-lodge its notice of appeal out of time, and also leave to file the record of appeal. The intended appeal is against the ruling of the High Court delivered on 3rd March, 2014 and amended on 19th March, 2014.
[2] According to the ruling dated 3rd March, 2014, which is attached to the affidavit sworn by Rev. Fredrick M. Kibuga in support of the motion, the High Court issued orders restraining the applicant and Nairobi City Council from trespassing on, transferring, constructing, developing and/or interfering with the respondents’ peaceful possession of property identified as LR. No. 209/11251, and an order for the applicant to yield vacant possession of that property to the respondent within 60 days failing which eviction orders were to issue. [3] In the certificate of urgency, Counsel for the applicant, Mr.Jaokourged that the applicant’s motion should be heard on priority basis because eviction of the applicant from the suit property was eminent, and that the respondents are relying on a fake and forged title, which identifies the disputed property as LR. No. 209/11281 instead of its correct identity, which is IR. 181940/1, LR. 209/15383. [4] I declined to certify the motion as urgent and consequently, the applicant through a letter dated 7th February, 2020 requested for the matter to be placed before the Court under Rule 47(5) of the Court Rules for inter parte hearing on the issue of certification.
[5] The parties appeared before me on 2nd March, 2020. Mr. Jaoko reiterated that the applicant’s motion is urgent because the respondents have been taking prospective buyers to the disputed property and there is danger that the suit property may be disposed of, and if the property goes into the hands of a third party, the intended appeal would be rendered nugatory. Mr. Jaoko further explains that the applicant had actually lodged a notice of appeal immediately after the ruling on 10th March, 2014 but the record of appeal was subsequently struck out for being incompetent. He therefore urged the court to give the applicant a chance by certifying the matter as urgent.
[6] Learned counsel Mr. Gad Gathu who appeared for the respondents urged the Court that there was no urgency in the matter as the record of appeal was struck out 3 years and 7 months ago and that the applicant has not demonstrated how the matter has suddenly become urgent. Counsel urged the Court that there was an order issued by the High Court for eviction of the applicant from the disputed property, which is identified in the order as LR. 209/11281 and not the property identified in the title exhibited by the applicant. He therefore urged the Court not to certify the motion as urgent.
[7] In considering the issue of urgency, the applicant has to satisfy the Court of the matters that justifies the motion being heard on priority. The main issue that the applicant appears to rely on is the fact that the respondents may dispose of the suit property. While I doappreciate that this is a possibility, I note that the High Court ordered the eviction of the applicant about 6 years ago. The applicant’s notice of appeal that was filed on 10th March, 2014 was struck out by this Court on 29th July, 2016. If there was urgency, anchored on fear of an eviction or sale, that urgency arose at that time. The court cannot now be urged 3½ years later that the matter is urgent when there is no evidence of the applicant having taken any action that would demonstrate such urgency.
[8] The upshot of the above is that I am not persuaded that there is any justification for giving this matter a priority hearing date. I therefore affirm my earlier order declining to certify the motion as urgent. The motion may be fixed for hearing in accordance with the Court diary.
Dated and delivered at Nairobi this 24thday of April, 2020.
HANNAH OKWENGU
…………………………..
JUDGE OF APPEAL
I certify that this is a
true copy of the original
Signed
DEPUTY REGISTRAR