[2001] KECA 32 (KLR)
The court found no basis to certify the application as urgent because the applicants failed to demonstrate sufficient diligence in pursuing their case and did not establish that the evidence they sought to introduce was so crucial as to warrant urgent intervention. The superior court had already determined that the...
Source-derived case information.
- Citation
- [2001] KECA 32 (KLR)
- Parties
- Applicant: Zacharia Amenya; Applicant: Clement Ratemo Nyambati; Respondent: Pollicup Mboya Agutu
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- ? 396 of 2001
- Procedural Posture
- Civil Application / Application for Certification of Urgency in the Court of Appeal
- Outcome
- Application for certification of urgency dismissed.
- Legal Topics
- Stay of Proceedings, Certification of Urgency, Admissibility of Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Zacharia Amenya
Applicant
Clement Ratemo Nyambati
Applicant
Pollicup Mboya Agutu
Respondent
Procedural Posture
Civil Application / Application for Certification of Urgency in the Court of Appeal
Legal Issues
- 1 Whether the application for certification of urgency should be granted.
- 2 Whether the applicants are entitled to stay of proceedings in the Magistrate's court pending appeal.
Ratio Decidendi
The court found no basis to certify the application as urgent because the applicants failed to demonstrate sufficient diligence in pursuing their case and did not establish that the evidence they sought to introduce was so crucial as to warrant urgent intervention. The superior court had already determined that the related suit by the witness was a non-starter, and the applicants' lack of diligence undermined their claim for urgency. Therefore, the application for certification of urgency was dismissed.
Court Disposition
Application for certification of urgency dismissed.
Orders
- The application for certification of urgency is dismissed.
Full Case Text
Judgment text and source record
11 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL AT KISUMU CORAM: KEIWUA, J.A. (IN CHAMBERS) CIVIL APPLICATION NO. NAI. 396 OF 2001 (UR.209/2001) BETWEEN
ZACHARIA AMENYA ..................................................................................... 1ST APPLICANT
CLEMENT RATEMO NYAMBATI ................................................................. 2ND APPLICANT
AND
POLLICUP MBOYA AGUTU ............................................................................. RESPONDENT
R U L I N G
The applicants have appealed from the decision of the superior court delivered on September 28, 2001. The certificate of urgency indicates that they had sought to challenge the decision of the Chief Magistrate's court which prohibited them from tendering evidence in that court. That suit is fixed for hearing on November 29, 2001 before the Magistrate's court.
The applicants are therefore in danger of having the suit in the Magistrate's court heard without the benefit of what they say to be crucial evidence in a test case because the applicants had been absolved from blame for the accident by one of the claimants in the Magistrate's Court.
The respondent opposes the application because it does not merit to be certified urgent. The evidence the applicants wish to produce was by one of the victims of the same accident who had instituted proceedings for damages.
The particular suit by that witness has been described to be a non-starter by the superior court, which found that the applicants had not been diligent in the matters giving rise to the application for stay of proceedings they wished certified urgent. On my part I do not find any basis upon which the application can be certified urgent. Dated and delivered at Kisumu this 23rd day of November 2001. M. OLE KEIWUA ............... JUDGE OF APPEAL I certify that this is a true copy of the original. DEPUTY REGISTRAR