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ELCDismissedNot stated in the judgment· [2021] KEELC 1699 (KLR)

Janefer Chebii Kimeto (suing as the personal representative of the estate of Jonah Kipkoske Arap Chumo) v Board of Governors Chebwagan Youth Polytechnic [2021] KEELC 1699 (KLR)

Environment and Land Court
7 October 2021
MOM.C. Oundo
2,889 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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By a Notice of Motion dated 21st May 2021 brought under Order 42 and Order 51(1) of the Civil Procedure Rules, Section 3A of the Civil Procedure Act and Article 159 of the Constitution, the Plaintiff/Applicant sought two orders: leave for the firm of Rodi, Orege & Company Advocates to come on record in place of Motanya & Company Advocates pursuant to a consent, and stay of execution of a ruling of 6th May 2021 which had reinstated her suit on conditions including deposit in court of taxed costs of Kshs. 794,557/= within 21 days and payment of throw-away costs of Kshs. 25,000/=. The Respondent opposed, contending the Applicant failed to demonstrate substantial loss, security for due performance, or an arguable appeal, and relied on the principle that a successful litigant is entitled to the fruits of judgment. The court allowed the change of advocates, holding that a filed consent between the outgoing and incoming firms complied with Order 9 Rule 9 and no court order was strictly necessary. On stay, the court restated the three conditions in Order 42 Rule 6(2). Delay was not contested and security was offered, but the Applicant failed to demonstrate the substantial loss she would suffer; the Respondent, a financially sound school, could refund execution proceeds if the Appeal succeeded, so the Appeal would not be rendered nugatory. The application was dismissed with costs, and the Applicant was granted 14 days to lodge her Appeal and 45 days to file and serve the record of appeal.

Key legal issues

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01

Change of advocates after judgment under Order 9 Rule 9

Holding

Upon a consent filed between the outgoing and incoming advocates, the change of advocates need not have sought a court order; the incoming firm was allowed on record for purposes of the record

Reasoning

Order 9 Rule 9 permits change of advocates after judgment to be effected by consent filed between the outgoing and incoming advocates. A consent dated 13th May 2021 had been recorded and filed in compliance with the law, so no court order was strictly necessary, though the court regularised the record.

p. 3
02

Conditions for stay of execution pending appeal under Order 42 Rule 6(2)

Holding

The Applicant satisfied the no-undue-delay condition and intimated willingness to give security, but failed to demonstrate substantial loss, so the stay application failed

Reasoning

The court restated the three conditions under Order 42 Rule 6(2): substantial loss, application without unreasonable delay, and security for due performance. Delay was not contested and willingness to furnish security was indicated, but the Applicant did not demonstrate the kind of substantial loss she would suffer. Since the Respondent was financially able to refund any execution proceeds if the Appeal succeeded, declining stay would not render the Appeal nugatory.

p. 4

Legal principles established

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  • An applicant for stay of execution pending appeal must demonstrate the specific substantial loss to be suffered and not merely assert that loss will ensue
  • Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory
  • A successful party is entitled to the fruits of his judgment or of any decision of the Court giving him success at any stage

Court orders

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  1. 1.The firm of Rodi, Orege & Company Advocates comes on record for the Applicant/Plaintiff for purposes of the record
  2. 2.The Application dated 21st May 2021 is dismissed with costs to the Respondent
  3. 3.The Applicant shall lodge her Appeal against the decree of the Court within 14 days from the date of the ruling
  4. 4.Upon filing of the memorandum of Appeal, the Applicant shall prepare, file and serve her record of appeal within 45 days

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 rule 6
  • Civil Procedure RulesOrder 51(1)
  • Civil Procedure RulesOrder 9 Rule 9
  • Civil Procedure RulesRule 5(2) of the Court of Appeal Rules (referred to in submissions)
  • Civil Procedure ActSection 3A
  • Constitution of KenyaArticle 159

Cases cited (5)

  • Godfrey Wainaina Kinyanjui & Another vs. Joseph Mwikya Musaa
    [2020] eKLR
  • Abercombie & Kent Limited vs John Wanjau Maina
    [2020] eKLR
  • Mukuma v Abuoga
    (1988) KLR 645
  • Arun C Sharma v Ashana Raikundalia t/a Raikundalia & Co Advocates & 2 Others
    [2014] eKLR
  • Machira T/A Machira & Co Advocates vs. East African Standard (No 2)
    [2002] KLR 63
Jurisdiction invoked
Order 42 and Order 51(1) of the Civil Procedure Rules, Section 3A of the Civil Procedure Act and Article 159 of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Janefer Chebii Kimeto (suing as the personal representative of the estate of Jonah Kipkoske Arap Chumo) v Board of Governors Chebwagan Youth Polytechnic [2021] KEELC 1699 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1699/eng@2021-10-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.