(On the Certificate of Urgency dated 11th August 2026)
A. INTRODUCTION
1. On 12th August 2026 the Applicant, through the firm of M/s Wakiaga Semekia & Co. Advocates, lodged in this Court a Certificate of Urgency dated 11th August 2026 together with a Supporting Affidavit sworn by SELPHER MAKUTI on the same date. From the depositions, the relief ultimately contemplated is an order transferring Vihiga Chief Magistrate’s Court Civil Case No. E163 of 2023 to another court — said to be the Milimani Commercial Magistrate’s Court — on grounds of territorial jurisdiction.
2. The underlying claim is one under the Fatal Accidents Act and the Law Reform Act arising from the death of the late John Asiema Oteni, who is said to have been struck by a crane on 22nd March 2021 at a construction site while in the employ of the Respondent.
3. The matter was placed before me for directions on the Certificate of Urgency. On perusal of the file, a threshold question arose which the Court is obliged to address on its own motion before any other consideration, namely: whether this Court has been properly moved so as to be seised of any application at all.
B. THE ISSUE FOR DETERMINATION
4. The single issue is whether a Certificate of Urgency, filed together with a supporting affidavit but unaccompanied by a Notice of Motion, is capable of invoking the jurisdiction of this Court.
C. ANALYSIS AND DETERMINATION
5. Order 51 rule 1 of the Civil Procedure Rules, 2010 is in mandatory terms. It provides that all applications to the Court, save where otherwise expressly provided for under the Rules, shall be by motion and shall be heard in open court. Order 51 rule 4 in turn requires that every notice of motion state in general terms the grounds of the application, and that where the motion is grounded on evidence by affidavit, a copy of the affidavit intended to be used be served with the notice of motion.
6. A certificate of urgency is not an application. It is a procedural and largely administrative device by which counsel invites the Court to accord an application priority in listing and, where appropriate, to certify it fit for hearing ex parte or on short notice. It is sworn or signed by the advocate, not by the party; it discloses no prayers; it is not a pleading; and it is, by its nature, ancillary to an application. It presupposes the existence of the very thing whose urgency it certifies. Where there is no motion, the certificate certifies nothing and has nothing to attach to.
7. The same must be said of the Supporting Affidavit. An affidavit is a vehicle for evidence. It is filed in support of an application; it is not the application. However elaborate the twenty-seven (27) paragraphs of the affidavit sworn on 11th August 2026 may be, they cannot substitute for the formal prayers which only a Notice of Motion can place before the Court.
8. The consequence is not merely procedural untidiness. This Court is confined to granting the reliefs sought by a party and cannot descend into the arena to formulate prayers on that party’s behalf. As matters stand, there is no prayer before me. There is no statutory provision cited as the anchor of the intended application — presumably section 18 of
the Civil Procedure Act, but the Court cannot assume it. There is nothing capable of being granted, dismissed, certified urgent, or served upon the Respondent.
9. I have anxiously considered whether Article 159(2)(d) of the Constitution, and sections 1A and 1B of the Civil Procedure Act, might permit the Court to overlook the omission. In my view they do not. The overriding objective is a tool for the just, expeditious and proportionate determination of proceedings that are properly before the Court; it is not a licence to dispense with the very instrument by which a court is moved. As has repeatedly been held, Article 159(2)(d) is not a panacea for all procedural shortfalls, and the rules of procedure are the handmaiden and not the mistress of justice only where there exists a suit or application to which they may be applied.
10. Nor is this a defect that can be cured by amendment or by an order regularising the record, because there is nothing on the record to amend. The omission goes to whether this Court has been moved at all. It has not.
11. That said, the Court is alive to the nature of the underlying claim. It concerns the death of a young man, allegedly at his place of work, and a widow and an infant child who have awaited a hearing on the merits since 2023. The interests of justice plainly favour affording the Applicant an opportunity to regularise her position rather than shutting her out. The defect identified is one of form, and it is readily remediable.
D. OBSERVATIONS
12. Without in any way determining the intended application, and purely to avoid further delay, the Applicant’s advocates may wish to attend to the following when regularising the record:
(a) The Certificate of Urgency is expressed to be filed "FOR THE RESPONDENT/APPLICANT", whereas the firm acts for the
Plaintiff/Applicant.
(b) The Verifying Affidavit on record describes the deponent, a widow, as "an adult male of sound mind".
(c) The plaint is variously described as dated 5th April 2023 and 12th April 2023.
(d) The deceased is named in the record variously as John Asiema Oteni, John Asiema Otieno and John Osiema; a single, consistent description ought to be adopted.
(e) The annextures marked "SMA-01" to "SMA-04" referred to in the Supporting Affidavit should be properly exhibited and paginated.
(f) The intended application should identify the statutory provision relied upon and, if a transfer is sought, address why the subordinate court seised of the matter is said to lack territorial jurisdiction and what is to become of the proceedings already had.
E. DISPOSITION
13. For the foregoing reasons, I make the following orders:
(a) This Court has not been properly moved. The Certificate of Urgency dated 11th August 2026, standing alone and unaccompanied by any Notice of Motion, is incapable of invoking the jurisdiction of this Court, and no orders can issue upon it.
(b) The Applicant is at liberty, if so advised, to file and serve a competent Notice of Motion, supported by affidavit and in compliance with Order 51 of the Civil Procedure Rules, 2010, within fourteen (14) days of the date hereof.
(c) Any such Notice of Motion, together with the supporting documents, shall be served upon the Respondent within seven (7) days of filing, and an affidavit of service filed.
(d) The matter shall be mentioned on 18th August 2026 to confirm compliance and, if compliance is confirmed, to take further directions on the disposal of the intended application.
(e) In default of compliance, the file shall be placed before the Court for such further orders as may be appropriate, including an order striking out the papers as presently filed.
(f) There shall be no order as to costs.
It is so ordered.
DATED, SIGNED AND DELIVERED AT VIHIGA THIS 14TH DAY OF AUGUST, 2026.
A. INTRODUCTION
1. On 12th August 2026 the Applicant, through the firm of M/s Wakiaga Semekia & Co. Advocates, lodged in this Court a Certificate of Urgency dated 11th August 2026 together with a Supporting Affidavit sworn by SELPHER MAKUTI on the same date. From the depositions, the relief ultimately contemplated is an order transferring Vihiga Chief Magistrate’s Court Civil Case No. E163 of 2023 to another court — said to be the Milimani Commercial Magistrate’s Court — on grounds of territorial jurisdiction.
2. The underlying claim is one under the Fatal Accidents Act and the Law Reform Act arising from the death of the late John Asiema Oteni, who is said to have been struck by a crane on 22nd March 2021 at a construction site while in the employ of the Respondent.
3. The matter was placed before me for directions on the Certificate of Urgency. On perusal of the file, a threshold question arose which the Court is obliged to address on its own motion before any other consideration, namely: whether this Court has been properly moved so as to be seised of any application at all.
B. THE ISSUE FOR DETERMINATION
4. The single issue is whether a Certificate of Urgency, filed together with a supporting affidavit but unaccompanied by a Notice of Motion, is capable of invoking the jurisdiction of this Court.
C. ANALYSIS AND DETERMINATION
5. Order 51 rule 1 of the Civil Procedure Rules, 2010 is in mandatory terms. It provides that all applications to the Court, save where otherwise expressly provided for under the Rules, shall be by motion and shall be heard in open court. Order 51 rule 4 in turn requires that every notice of motion state in general terms the grounds of the application, and that where the motion is grounded on evidence by affidavit, a copy of the affidavit intended to be used be served with the notice of motion.
6. A certificate of urgency is not an application. It is a procedural and largely administrative device by which counsel invites the Court to accord an application priority in listing and, where appropriate, to certify it fit for hearing ex parte or on short notice. It is sworn or signed by the advocate, not by the party; it discloses no prayers; it is not a pleading; and it is, by its nature, ancillary to an application. It presupposes the existence of the very thing whose urgency it certifies. Where there is no motion, the certificate certifies nothing and has nothing to attach to.
7. The same must be said of the Supporting Affidavit. An affidavit is a vehicle for evidence. It is filed in support of an application; it is not the application. However elaborate the twenty-seven (27) paragraphs of the affidavit sworn on 11th August 2026 may be, they cannot substitute for the formal prayers which only a Notice of Motion can place before the Court.
8. The consequence is not merely procedural untidiness. This Court is confined to granting the reliefs sought by a party and cannot descend into the arena to formulate prayers on that party’s behalf. As matters stand, there is no prayer before me. There is no statutory provision cited as the anchor of the intended application — presumably section 18 of
the Civil Procedure Act, but the Court cannot assume it. There is nothing capable of being granted, dismissed, certified urgent, or served upon the Respondent.
9. I have anxiously considered whether Article 159(2)(d) of the Constitution, and sections 1A and 1B of the Civil Procedure Act, might permit the Court to overlook the omission. In my view they do not. The overriding objective is a tool for the just, expeditious and proportionate determination of proceedings that are properly before the Court; it is not a licence to dispense with the very instrument by which a court is moved. As has repeatedly been held, Article 159(2)(d) is not a panacea for all procedural shortfalls, and the rules of procedure are the handmaiden and not the mistress of justice only where there exists a suit or application to which they may be applied.
10. Nor is this a defect that can be cured by amendment or by an order regularising the record, because there is nothing on the record to amend. The omission goes to whether this Court has been moved at all. It has not.
11. That said, the Court is alive to the nature of the underlying claim. It concerns the death of a young man, allegedly at his place of work, and a widow and an infant child who have awaited a hearing on the merits since 2023. The interests of justice plainly favour affording the Applicant an opportunity to regularise her position rather than shutting her out. The defect identified is one of form, and it is readily remediable.
D. OBSERVATIONS
12. Without in any way determining the intended application, and purely to avoid further delay, the Applicant’s advocates may wish to attend to the following when regularising the record:
(a) The Certificate of Urgency is expressed to be filed "FOR THE RESPONDENT/APPLICANT", whereas the firm acts for the
Plaintiff/Applicant.
(b) The Verifying Affidavit on record describes the deponent, a widow, as "an adult male of sound mind".
(c) The plaint is variously described as dated 5th April 2023 and 12th April 2023.
(d) The deceased is named in the record variously as John Asiema Oteni, John Asiema Otieno and John Osiema; a single, consistent description ought to be adopted.
(e) The annextures marked "SMA-01" to "SMA-04" referred to in the Supporting Affidavit should be properly exhibited and paginated.
(f) The intended application should identify the statutory provision relied upon and, if a transfer is sought, address why the subordinate court seised of the matter is said to lack territorial jurisdiction and what is to become of the proceedings already had.
E. DISPOSITION
13. For the foregoing reasons, I make the following orders:
(a) This Court has not been properly moved. The Certificate of Urgency dated 11th August 2026, standing alone and unaccompanied by any Notice of Motion, is incapable of invoking the jurisdiction of this Court, and no orders can issue upon it.
(b) The Applicant is at liberty, if so advised, to file and serve a competent Notice of Motion, supported by affidavit and in compliance with Order 51 of the Civil Procedure Rules, 2010, within fourteen (14) days of the date hereof.
(c) Any such Notice of Motion, together with the supporting documents, shall be served upon the Respondent within seven (7) days of filing, and an affidavit of service filed.
(d) The matter shall be mentioned on 18th August 2026 to confirm compliance and, if compliance is confirmed, to take further directions on the disposal of the intended application.
(e) In default of compliance, the file shall be placed before the Court for such further orders as may be appropriate, including an order striking out the papers as presently filed.
(f) There shall be no order as to costs.
It is so ordered.
DATED, SIGNED AND DELIVERED AT VIHIGA THIS 14TH DAY OF AUGUST, 2026.