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Court of AppealOtherNot stated in the judgment as provided

Benjamin J. Gikenyi Magare v Vice Chancellor, Moi University & 2 others [2018] KECA 238 (KLR)

Court of Appeal of Kenya
22 October 2018
EGE. M. Githinji
403 words in judgment
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The bottom line

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The Court of Appeal refused to certify a motion as urgent but expedited its hearing, showing urgency claims fail when the underlying situation has improved.

What this practically means

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Executive summary

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This is a short procedural ruling by Githinji, JA of the Court of Appeal at Kisumu, delivered on 22nd October 2018. The judge had on 17th July 2018 declined to certify the applicant's Notice of Motion dated 21st June 2018 as urgent. Following a letter from the applicant to the President of the Court of Appeal, the judge directed that the question of urgency be argued inter partes in Kisumu. The applicant sought certification of urgency, supported by an affidavit sworn 30th August 2018; the 1st respondent, through a replying affidavit of Petrolina Chepkwony, Senior Legal Officer, opposed urgency on the ground that the applicant had by letter dated 4th October 2018 been reinstated to the Master's Decree programme. Counsel for the applicant conceded receipt of that letter but maintained that the applicant's name remained omitted from the list of candidates required to present oral thesis at the end of the month. The judge noted that the applicant was appealing an order of the High Court setting aside a stay order granted at leave stage, while the substantive judicial review application remained pending in the High Court. Holding that urgency was still not made out, the judge nonetheless, in the interest of justice and given few pending applications at the Eldoret station, directed the Deputy Registrar to list the motion for hearing by the full Court at Eldoret during the next session, with costs of the hearing to be costs in the pending application.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Notice of Motion dated 21st June 2018 should be certified as urgent
  2. 2.Whether the applicant's request that the certificate of urgency be heard inter partes should be granted

Key legal issues

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01

Certification of urgency

Holding

The motion was not urgent; the substantive judicial review application remains pending in the High Court and the applicant had been reinstated to the Master's Decree programme

Reasoning

The single judge reconsidered the urgency certificate inter partes after the applicant's letter to the President of the Court of Appeal. Balancing the affidavits and submissions, and noting the reinstatement letter and the pending substantive application, the judge declined urgency but directed an expedited full-Court hearing at Eldoret in the interest of justice.

p. 1

Legal principles established

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    Court orders

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    1. 1.The Deputy Registrar of the Court directed to list the Notice of Motion dated 21st June 2018 for hearing by the full Court at Eldoret during the next session
    2. 2.Costs of this hearing to be costs in the pending application

    The bench

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    One judgment of the whole court — no separate or dissenting opinions.

    EG
    majority

    Wrote the judgment

    On appeal from
    High Court
    Jurisdiction invoked
    Inherent case-management powers of the Court of Appeal over certification of urgency (no specific provision cited)

    Relief refused

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    Certification of the Notice of Motion dated 21st June 2018 as urgent

    The court remained unsatisfied of urgency, noting the applicant had been reinstated to the Master's Decree programme and the substantive judicial review application was still pending

    p. 1

    Costs

    The costs of this hearing shall be costs in the pending application.

    Quotable passages

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    Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

    In the premises, I direct the Deputy Registrar of the Court to list the Notice of Motion dated 21 st June, 2018 for hearing by the full Court at Eldoret during the next session.
    p. 1Final orders - listing of the motion
    The costs of this hearing shall be costs in the pending application.
    p. 1Costs

    Issues in the judgment

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    minor

    This is a single-judge procedural ruling on a certificate of urgency, not a full appellate judgment by a bench of the Court; it establishes no binding precedent

    minor

    The case title and case/appeal number are not stated in the text provided

    Key timeline

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    Practical implications

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    Frequently asked questions

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    Cite this brief

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    Cite this brief

    Caselaw, "Benjamin J. Gikenyi Magare v Vice Chancellor, Moi University & 2 others [2018] KECA 238 (KLR)", Case Analysis (2018). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/238/eng@2018-10-22

    Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.