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Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Application E349 of 2021

Savannah Heights Limited v Seruji Limited & another

Court of Appeal
4 March 2022
2,625 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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The Court of Appeal refused to fast-track Savannah Heights' application, confirming that arguing your appeal is strong is not the same as showing urgency.

What this practically means

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Executive summary

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This is a ruling by Nambuye, JA sitting as a single Judge of the Court of Appeal at Nairobi on an application by Savannah Heights Limited seeking certification of its application as urgent, together with injunctions restraining Seruji Limited from holding itself out as a shareholder of Savannah Cement Limited and staying resolutions passed at an Extraordinary General Meeting held on 15th September 2021, pending an appeal against orders of Mabeya J of 10th September 2021 granting leave to hold that meeting. On 7th October 2021 the single Judge had declined to certify the application as urgent because the grounds in the certificate of urgency dwelt on the arguability of the appeal rather than urgency. The applicant sought rescission of that order. The 1st respondent opposed, relying on the pendency of its application to strike out the notice of appeal and on authorities urging the court to down its tools. The Judge held that unless and until the notice of appeal is vitiated, the application is properly before the court, and applied the Githiaka v Nduriri principles that discretion must be exercised with reason and to render justice. Finding that the applicant's grounds still concerned arguability and post-ruling events rather than urgency, the Judge affirmed the earlier refusal to certify the application as urgent. The substantive injunction and stay prayers were therefore not reached, and no costs order was made.

Questions the Court framed

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

  1. 1.Whether pendency of an application to strike out the notice of appeal is sufficient basis for the court to decline to proceed (down its tools)
  2. 2.Whether the order of 7th October 2021 declining to certify the application as urgent should be reviewed, discharged or set aside, or affirmed

Key legal issues

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01

Effect of a pending application to strike out the notice of appeal

Holding

Pendency of a striking-out application does not deprive the single Judge of jurisdiction to hear the certification application

Reasoning

The 1st respondent relied on Owners of the Motor Vessel 'Lillian S' and Charles Kamuren to urge the court to down tools pending determination of its application to strike out the notice of appeal. The Judge held that only a vitiation of the notice of appeal would defeat the application; until then it is properly before the court.

p. 4
02

Principles governing certification of urgency

Holding

Certification is a discretionary mandate exercised with reason and for the sole purpose of rendering justice; arguability of the appeal is not a ground of urgency

Reasoning

Applying Githiaka v Nduriri, the Judge held that grounds resting on the arguability of the appeal belong to the substantive Rule 5(2)(b) application, not to urgency. The applicant's grounds, both originally and at the inter partes hearing, dwelt on arguability and post-ruling events, which did not demonstrate why the application should be fast-tracked.

p. 5

Legal principles established

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  • Unless and until the notice of appeal on which an application is anchored is vitiated, the application is properly before the court
  • Judicial discretion must be exercised with reason, not whim, caprice or sympathy, and solely to render justice to the parties

Court orders

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  1. 1.The order of 7th October 2021 declining to certify the application as urgent was upheld; the application for certification of urgency was dismissed (no certification granted)

The bench

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

majority

Wrote the judgment

On appeal from
High Court of Kenya
Nairobi HC Misc. Application No. E445 of 2021
Jurisdiction invoked
Court of Appeal single Judge jurisdiction under the Court of Appeal Rules (certification of urgency; Rule 5(2)(b) referenced)

Relief refused

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Certification of the application as urgent

Grounds in the certificate of urgency dwelt on arguability of the appeal, which falls for consideration on the substantive application, not on urgency

Injunctions and stay of execution pending appeal (prayers 2-4)

Not considered because the application was not certified urgent

Costs

No costs order made in the ruling; prayer 7 (costs borne by 1st respondent) not granted

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.

unless and until the notice of appeal on which the application is anchored is vitiated, the application is properly before me and I will therefore proceed to pronounce myself on its merit.
p. 4Effect of pending striking-out application on jurisdiction
the exercise of judicial discretion is unfettered with the only caveat being that it must be exercised with reason and not whim, caprice or sympathy.
p. 5Judicial discretion in certification of urgency
The upshot of the totality of the above lengthy assessment and reasoning is that there is nothing to make me change the position I took on 7th October, 2021 when I declined to certify the application urgent.
p. 5Final orders - affirmation of earlier refusal to certify urgency

Issues in the judgment

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minor

Notice of appeal dated against a decision of '20th September, 2021' though the impugned decision was 10th September 2021

minor

Civil suit number and dismissal date inconsistently stated (170 of 2010 vs 170 of 2016; 11th February 2011 vs 11th February 2022)

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, "Savannah Heights Limited v Seruji Limited & another", Case Analysis (2022). Civil Application E349 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/414/eng@2022-03-04

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