Alice Wambui Nganga v John Ngure Kahoro [2021] KEELC 2441 (KLR)
The bottom line
#A Kenyan court allowed a lawyer's late switch of representation but refused to halt execution of a judgment because the applicant offered no evidence of substantial loss.
What this practically means
#Executive summary
#Key legal issues
#Whether leave is required for an incoming advocate to come on record after judgment
Leave was required under Order 9 Rule 9 and, having been sought and unopposed, was granted; the firm of Norman Otieno & Co. Advocates is properly on record
The court noted the advocates came on record after delivery of judgment and therefore needed leave under Order 9 Rule 9 of the Civil Procedure Rules, 2010. Rule 10 permits the prayer for leave to be brought together with other prayers. Since the prayer for leave was not disputed or contested, the court held the incoming firm properly on record and granted prayer 1 of the application.
Whether the applicant was entitled to stay of execution pending appeal
Stay refused - the applicant failed to establish substantial loss, gave no security, and did not show the appeal would be rendered nugatory
Order 42 Rule 6(2) requires satisfaction that substantial loss may result, absence of unreasonable delay, and provision of security. The applicant produced no evidence of substantial loss or occupation of the suit property, did not explain provision of security, and did not demonstrate that execution would be irreversible or that damages would not compensate the respondent. Both the arguability and nugatory limbs must be satisfied before discretion can be exercised in the applicant's favour.
Whether the applicant should be granted leave to appeal out of time
Leave refused - no draft Memorandum of Appeal or Notice of Appeal was produced to demonstrate an intention to appeal
Under Section 79G of the Civil Procedure Act an appeal from a subordinate court must be filed within thirty days unless the applicant shows good and sufficient cause. Although judgment was delivered on 18th June 2020 and the application dated 2nd July 2020 (so no inordinate delay), the applicant failed to attach a draft Memorandum of Appeal or produce the Notice of Appeal he claimed to have lodged, so his intention to appeal was not demonstrated.
Legal principles established
#- A successful party is prima facie entitled to the fruits of his judgment, and the court must balance ensuring an appeal is not rendered nugatory against not impeding enjoyment of the decree
- An applicant for stay must demonstrate substantial loss with evidence; mere allegation is insufficient
Court orders
#- 1.Leave granted to the Law Firm of Norman Otieno & Co. Advocates to come on record for the 2nd Defendant/Applicant in place of Thuku & Associates Advocates, with the Notice of Change of Advocates deemed duly and properly filed
- 2.Prayers for stay of execution and leave to appeal out of time dismissed entirely
- 3.Costs of the application to the Plaintiff/Respondent
- Jurisdiction invoked
- Article 159(2) of the Constitution, Sections 3A, 79G and 95 of the Civil Procedure Act and Order 9 Rule 9(a) and 10, Order 22 Rule 22, Order 42 Rule 6, Order 50 Rule 6 and Order 51 Rule 1 and 3 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Alice Wambui Nganga v John Ngure Kahoro [2021] KEELC 2441 (KLR)", Case Analysis (2021). Notice of Motion Application dated 2nd July 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2441/eng@2021-07-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.