Rose Chepkoech Rotich v Elias Kiplagat Busienei [2021] KEELC 3328 (KLR)
The bottom line
#The court allowed a lawyer to take over a case after judgment but refused to halt execution because the applicant waited over two years and cited the wrong rule.
What this practically means
#Executive summary
#Key legal issues
#Leave for new advocates to come on record after judgment
Granted, as the prayer was unopposed and the Plaintiff had demonstrated her intention to be represented after acting in person.
The correct provision, Order 9 Rule 9 of the Civil Procedure Rules, was not cited, but prayer 2 sought precisely that leave and the Defendant did not oppose it. The Court found the Plaintiff had been acting in person and, through the application, had shown her intention to be represented by Counsel, so the prayer was allowed notwithstanding the defective invocation of provisions.
Stay of execution pending appeal
Refused.
The application invoked Order 40, which concerns temporary injunctions, instead of Order 42 Rule 6 which governs stay pending appeal. On the merits, the Plaintiff delayed about two years four months from judgment before applying, did not demonstrate substantial loss, and the judgment had dismissed her claim with costs; execution on costs alone cannot justify a stay.
Existence of a filed Notice of Appeal
A Notice of Appeal dated 8th February, 2016 filed by the Plaintiff in person exists on the record, though unacknowledged and undated by the Deputy Registrar.
Although the Notice was not signed or dated in acknowledgment by the Deputy Registrar, and the copy annexed to the application (RJR2) was an undated 2018 unfiled document, the record confirmed the Plaintiff, immediately after judgment, made an oral request for proceedings, wrote for typed proceedings, and filed a Notice of Appeal dated 8th February, 2016 under receipt No. 7356392.
Costs of the application
The Plaintiff to pay the Defendant's costs despite partial success.
Although the Plaintiff succeeded on prayer 2 only, the Court exercised discretion under Section 27 of the Civil Procedure Act to award the Defendant the costs of the application, given the Plaintiff's inordinate delay and the failure of the stay prayer.
Legal principles established
#- Order 40 of the Civil Procedure Rules governs temporary injunctions and interlocutory orders, not stay of execution pending appeal, which is provided for under Order 42 Rule 6.
- Execution on costs is not a basis for a stay of execution order.
- A party who succeeds on only one prayer may nonetheless be ordered to pay costs of the application notwithstanding Section 27 of the Civil Procedure Act.
Court orders
#- 1.The Plaintiff's Notice of Motion dated and filed on the 22nd May, 2018 is allowed limited to granting M/s Morgan Omusundi Law Firm leave to come on record for the Plaintiff after entry of judgment.
- 2.The Plaintiff to pay the Defendant the costs of the application.
- Jurisdiction invoked
- Sections 1A, 1B, 3 and 3A of the Civil Procedure Act and Order 40 Rules 1, 2, 3(3) and 9 of the Civil Procedure Rules (as invoked in the application)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rose Chepkoech Rotich v Elias Kiplagat Busienei [2021] KEELC 3328 (KLR)", Case Analysis (2021). Notice of Motion dated 22nd May, 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3328/eng@2021-04-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.