William Charles Fryda & another v Assumption Sisters of Nairobi Registered Trustees & another [2017] KEELC 1100 (KLR)
The bottom line
#A Kenyan court dismissed a doctor's bid to pause execution of a judgment because his new lawyers filed the appeal notice before officially taking over the case.
What this practically means
#Executive summary
#Key legal issues
#Competence of Notice of Appeal filed by advocates not on record
The Notice of Appeal was lodged by M/s Mwangi E.G & Company Advocates before the consent bringing them on record was filed, making them strangers to the proceedings; the Notice is incompetent and cannot found an application for stay.
Order 9 Rule 9 requires that a change of advocate after judgment be effected by court order or by consent between the outgoing and incoming advocates. The consent here was executed on 9 October 2017 and filed on 11 October 2017, yet the Notice of Appeal was lodged on 2 October 2017. The firm was therefore not on record when it filed the Notice, which was filed by a stranger and is fatally defective. Without a valid Notice of Appeal there is no appeal to stay execution pending.
Substantial loss
No substantial loss was demonstrated; the properties would simply be transferred to the company and the applicant's appeal would not be rendered nugatory by execution.
The suit properties are registered in the name of ASN and were ordered transferred to St. Mary's Mission Hospital to be held as a charitable trust, not to any third party alienating them. If the applicant succeeds on appeal the properties can simply be transferred to him. Handing over management of the hospitals does not render the appeal nugatory, and the applicant, a qualified medical doctor, can earn a living through his profession.
Security for due performance of the decree
The applicant offered to deposit costs as security, but since no costs were ordered there was nothing that could constitute good security.
The court had made no orders as to costs in the judgment, so there were no costs capable of being deposited. The proposed security was therefore illusory and could not back up an application for stay.
Delay
The application was filed a few days after judgment, so no unreasonable delay.
The judgment was delivered on 28 September 2017 and the application dated 29 September 2017 and filed on 2 October 2017, which the court accepted as timely.
Legal principles established
#- After judgment, an incoming advocate can only properly come on record through an application with notice or by consent under Order 9 Rule 9; a Notice of Appeal filed by an advocate not on record is incompetent.
- A stay pending appeal cannot be granted where there is no competent Notice of Appeal.
- An applicant for stay must establish absence of unreasonable delay, substantial loss and security.
- Order 9 Rule 9 applies to change of advocate after judgment generally, not merely to execution proceedings.
Court orders
#- 1.The application for stay of execution pending appeal dated 29 September 2017 is dismissed
- 2.No orders as to costs in respect of the application
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules and Sections 1, 1A, 3 and 3A of the Civil Procedure Act, Cap 21
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (8)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Munene v Gisesa & another (Civil Appeal 369 of 2019) [2025] KECA 2115 (KLR)[2025] KECA 2115 (KLR)5 Dec 2025
- Teacher Service Commission v Mwangi (Civil Appeal 27 of 2020) [2023] KEELRC 140 (KLR)[2023] KEELRC 140 (KLR)26 Jan 2023
- Nation Media Group Limited & another v Wambui & another (Civil Appeal 270 of 2018) [2023] KECA 89 (KLR)[2023] KECA 89 (KLR)3 Feb 2022followed
- Mary Musuki Mudachi & another v Anthony Muteke Mudachi & 2 others; Elijah K. Kimanzi & 6 others (Interested Parties) [2021] KEELC 147 (KLR)[2021] KEELC 147 (KLR)15 Dec 2021distinguished
- Musikari Kombo v Royal Media Services Limited [2018] KECA 801 (KLR)[2018] KECA 801 (KLR)9 Feb 2018followed
- Miguna v The Standard Group Limited & 4 others (Civil Appeal 164 of 2016) [2017] KECA 365 (KLR)[2017] KECA 365 (KLR)28 Jul 2017followed
- Kimumu Service Station limited v Land Registrar Nairobi [2016] KEELC 984 (KLR)[2016] KEELC 984 (KLR)19 Feb 2016applied
- Francis Mutuku Nzangi v Republic [2013] KECA 112 (KLR)[2013] KECA 112 (KLR)22 Nov 2013followed
Cite this brief
#Cite this brief
Caselaw, "William Charles Fryda & another v Assumption Sisters of Nairobi Registered Trustees & another [2017] KEELC 1100 (KLR)", Case Analysis (2017). Nakuru High Court Civil Suit No. 224 of 2010 (application dated 29 September 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1100/eng@2017-10-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.