Lomoro v Spring Hillpark Limited (Environment & Land Case E151 of 2021) [2024] KEELC 1156 (KLR)
The bottom line
#A Kenyan High Court let a defendant change lawyers after judgment but refused to pause execution because the defendant proved no loss and gave no security.
What this practically means
#Executive summary
#Key legal issues
#Change of advocates after judgment
Leave granted; a consent between outgoing and incoming advocates satisfies Order 9 Rule 9
The court noted the applicant's erstwhile advocate and the incoming firm entered a consent for the firm to come on record. Under Order 9 Rule 9, a post-judgment change may be effected either by application with notice or by consent between outgoing and incoming advocates. No objection was raised by the respondent. The court therefore allowed the incoming firm on record on the strength of the consent.
Substantial loss for stay of execution
Not established; bare assertion that funds were used in construction without evidence is insufficient
Applying James Wangalwa and Century Oil Trading, execution is a lawful process and ordinary loss of property upon losing a case is not substantial loss. The applicant contended the refund money had been used in construction, but placed no evidence before the court showing how substantial loss would result. The court would not deny a successful litigant the fruits of judgment without proof.
Security for due performance of the decree
Not given; proposed security (a third party's apartment title or an unspecified bank guarantee) was inadequate
The applicant offered title to an apartment owned by a non-party 'proxy' and asserted willingness to provide a bank guarantee without producing any instrument. The court held the applicant must show commitment by providing security, and questioned how a decree holder could convert security held in another person's name to her benefit if the appeal failed.
Legal principles established
#- An applicant for stay pending appeal must satisfy the three conditions in Order 42 Rule 6(2): substantial loss, no unreasonable delay, and security for due performance of the decree
- Failure to produce evidence of substantial loss means the applicant will not suffer substantial loss
- A change of advocate after judgment may be effected upon a consent filed between the outgoing and incoming advocates under Order 9 Rule 9
Court orders
#- 1.Leave granted for the firm of Wafula Simiyu & Co. Advocates to come on record for the Applicant in place of Igeria & Ngugi Advocates (prayer c)
- 2.Prayers for stay of execution dismissed entirely
- 3.Costs of the application to the Plaintiff/Respondent
- Jurisdiction invoked
- Section 3A of the Civil Procedure Act; Order 42 Rule 6, Order 9 Rules 9 & 10 and Order 51 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lomoro v Spring Hillpark Limited (Environment & Land Case E151 of 2021) [2024] KEELC 1156 (KLR)", Case Analysis (2023). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1156/eng@2024-02-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.