Mohammed Adan Issak & another v Chris Ndolo Mutuku [2020] KEELC 238 (KLR)
The bottom line
#The High Court dismissed the appellants' bid to pause execution of the judgment, ruling they failed to prove substantial loss or offer security.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the preliminary objection is merited
- 2.Whether the appellants have satisfied the conditions for grant of stay of execution pending appeal
- 3.Who should bear costs?
Key legal issues
#Whether the firm of Muma & Kanjama Advocates was properly on record without compliance with Order 9 rule 9 of the Civil Procedure Rules
The firm was properly on record; Order 9 rule 9 does not apply to appeals, so no leave was needed to come on record for the appeal.
Relying on Stanley Mugambi vs Anthony Mugambi, the court adopted the reasoning that the rule on change of advocates after judgment is restricted to suits going on or concluded in the same court and does not extend to appeals, since an appeal is a new proceeding in a different court. The rule was intended only to prevent parties from dropping advocates after judgment to deny them costs.
Whether the preliminary objection, contending the appeal was incompetent (out of time, review-based, offending Order 45 rule 6), had merit
The preliminary objection was dismissed; the appeal was against the ruling of 26th August 2019 dismissing an application for review, an appeal which lies as of right under Order 43 rule 1(1)(x).
The court noted the memorandum of appeal was directed at the ruling and orders of 26th August 2019, and that an appeal from an order dismissing an application for review lies as of right. The court declined to delve into the merits of the appeal at that stage and held the appellants' right to be heard obliged the court to entertain the appeal.
Whether the conditions for stay of execution pending appeal under Order 42 rule 6 were satisfied
The application was brought without unreasonable delay, but substantial loss and security were not demonstrated, so the application failed.
The court applied Order 42 rule 6(2), requiring substantial loss, absence of unreasonable delay and security. Although there was no delay, the 1st appellant swore several affidavits without annexing any document proving ownership of the suit property, and the attached motor vehicles had already been sold; thus no tangible loss was shown and no security was established.
Legal principles established
#- Order 9 rule 9 of the Civil Procedure Rules does not apply to appeals; a new advocate may come on record for an appeal without leave or compliance with that rule.
- An appeal lies as of right against an order dismissing or allowing an application for review under Order 43 rule 1(1)(x) of the Civil Procedure Rules.
- Substantial loss must be specifically demonstrated with details and particulars; it is not enough to merely assert it.
Court orders
#- 1.The preliminary objection dated 12th September 2019 is dismissed
- 2.The notice of motion dated 4th September 2019 seeking stay of execution pending appeal is dismissed
- 3.Costs of the application are awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court, Nairobi
- NBI CMCC No. 1020 of 2018
- Jurisdiction invoked
- Section 10 of the High Court (Organization & Administration) Act; Order 42 rule 6 and Order 51 rule 1 of the Civil Procedure Rules, 2010; sections 1A, 1B and 3A of the Civil Procedure Act (Cap 21)
Relief refused
#Stay of execution of the judgment dated 4th April 2019 in NBI CMCC No. 1020 of 2018 and all consequential orders pending appeal
The appellants failed to demonstrate substantial loss and to offer security, and thus did not satisfy the conditions in Order 42 rule 6 of the Civil Procedure Rules
Costs
The application is dismissed with costs to the respondent.
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.
I find that the firm of Muma & Kanjama Advocates are properly on record as they did not require any leave to come on record.
The appellants have a right to appeal to this court as of right as envisaged under order 43 rule 1(1) (X) of the Civil Procedure Rules.
In conclusion I find no merit in this application and the same is dismissed with costs to the respondent. It is so ordered.
Issues in the judgment
#The judgment cites 'order 42 rule (1) (1)(x)' in submissions but the court's holding cites 'order 43 rule 1(1) (X)' as the basis of the right of appeal from a review order, an internal inconsistency in the rule relied upon.
The judgment states the application was filed without undue delay as 'the ruling was delivered on 26 th August 2018' although elsewhere the ruling date is given as 26th August 2019.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mohammed Adan Issak & another v Chris Ndolo Mutuku [2020] KEELC 238 (KLR)", Case Analysis (2020). NBI HC Civil Appeal arising from NBI CMCC No. 1020 of 2018 (Notice of Motion dated 4th September 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/238/eng@2020-12-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.