The applicants (Gharib Nawaz Investments and Walknolt Investments) and the first respondent (Veanarcy) were parties to a main case (HCH 6995/21) concerning eviction from premises at Stand No. 3899RE Salisbury Township. The parties executed a deed of settlement and a consent order dated 22 October 2024 was issued requiring the applicants to vacate by 30 June 2025, failing which the Sheriff could evict them. The applicants were also ordered to pay holding over damages of US$3000 per month from February 2025. After the consent judgment, the parties engaged in negotiations regarding extended occupancy and roof repair costs. On 15 July 2025, the first respondent issued a writ of eviction which was served on 21 August 2025 without prior notice to the applicants, despite ongoing negotiations. The applicants filed an application (HCH 4323/25) on 27 August 2025 to set aside the consent order, followed by this urgent application to stay execution. The applicants operated a flour milling plant with equipment weighing six tonnes and standing twenty metres high, employing forty employees.
1. The first respondent's objection to the urgency of the application is dismissed. 2. The hearing shall continue on the merits. 3. The parties must indicate within forty-eight (48) hours of the uploading of this order whether they require to be heard or that the matter may be decided on the papers. 4. The Registrar to set down the matter for hearing if parties, both or one of them requires a formal hearing.
Where parties are engaged in ongoing negotiations following a consent order, the need to act for purposes of urgency arises when one party unilaterally enforces the order without notice, not when the original order was granted. Urgency must be assessed based on when the need to act arises and whether the matter can wait, applying both time and consequences criteria. A party's compliance with an existing court order pending challenge does not disentitle them to urgent relief under the "dirty hands" principle but rather demonstrates proper conduct. The Kwarega test requires that urgency stem from circumstances beyond the applicant's deliberate or careless abstention, and where enforcement is pursued without notice during negotiations, the applicant cannot be said to have deliberately delayed.
The court made a general observation that it has become "fashionable for respondents to raise the point [of non-urgency] hoping to avoid the merits in which they have no plausible defence," though the court acknowledged this was a sweeping statement and that each case must be considered on its merits. The court also commented that the applicants' continued compliance with the consent order was "to their credit" and that their position would have been untenable had they not complied, as courts take seriously the "dirty hands" principle and will not grant audience to parties who have not complied with existing court orders. The court noted it had doubts about the first respondent's argument that compliance with the deed of settlement precluded challenging it, stating this conclusion "touches more on the merits."
This case provides guidance on determining urgency in urgent applications, particularly in the context of enforcement proceedings where parties are engaged in ongoing negotiations. It clarifies that the need to act arises not necessarily when a court order is issued, but when circumstances change such that immediate relief is required - in this case, when a writ was served without notice during negotiations. The judgment also illustrates the application of the Kwarega test for urgency and reinforces that objections to urgency must be considered on the individual merits of each case rather than as a blanket procedural obstacle. It emphasizes the relevance of both temporal factors and potential consequences in assessing urgency.