West Kenya Sugar Co. Ltd v Matayo Ingoshe [2022] KEELRC 933 (KLR)

Section 79G requires good and sufficient cause for delay. The applicant had lodged an appeal at Kakamega High Court which was struck out for want of jurisdiction, then sought transfer which was rejected on 4th October 2021, and filed this application on 1st November 2021. Relying on Waruthiu and Salat, the court found the entire period explained, added that counsel's mistake should not be visited on the innocent litigant, and took judicial notice of past jurisdictional uncertainty over WIBA matters.

The depositions concerned matters counsel is competent to address, annexing court rulings and pleadings. Following S.K. Tawadi v Veronica Muehlmann, the purpose of Order 9 Rule 9 is to protect outgoing advocates, not to prejudice other parties. A consent dated 30th October 2021 had been filed in the trial court, satisfying the rule's purpose. Article 159(2)(d) required the court to disregard the procedural technicality.

Order 42 Rule 6(2) requires demonstration of substantial loss. The applicant relied on Shell v Kibiru, showing potential loss of money if paid since the respondent could not repay. The respondent was a man of straw per trial evidence and did not rebut the averment that security had been deposited into a joint interest-earning account of the trial advocates. Applying Butt v Rent Restriction Tribunal, the court found stay warranted so the appeal would not be rendered nugatory.

The test is whether the appeal is arguable and not frivolous. The draft memorandum questioned the trial court's treatment of the defence evidence, the finding of liability absent proof of breach of duty of care, and the conclusions on liability and damages. The court found these arguable, consistent with First American Bank of Kenya v Gulab P Shah.