Savannah Heights Limited v Seruji Limited & another
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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.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
#Effect of a pending application to strike out the notice of appeal
Pendency of a striking-out application does not deprive the single Judge of jurisdiction to hear the certification application
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.
Principles governing certification of urgency
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
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.
Legal principles established
#- 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
#- 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
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
#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.
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.
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.
Issues in the judgment
#Notice of appeal dated against a decision of '20th September, 2021' though the impugned decision was 10th September 2021
Civil suit number and dismissal date inconsistently stated (170 of 2010 vs 170 of 2016; 11th February 2011 vs 11th February 2022)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.