West Kenya Sugar Co Ltd & another v Timothy Ageno Kiyesi [2022] KEELRC 954 (KLR)

The Applicant filed an appeal in the Kakamega High Court (No. 136 of 2018), which was struck out for want of jurisdiction, and a transfer application dismissed on 4 October 2021; the present application was lodged on 1 November 2021. Citing Waruthiu and Salat, the court found the entire period explained. The mistake of counsel filing in the wrong court should not be visited on the innocent litigant, and there has been jurisdictional uncertainty over WIBA matters.

The court examined the draft memorandum of appeal, which complains that the trial court treated the defence evidence and submissions superficially, arrived at wrong conclusions on liability and damages, and found liability without evidence of breach of duty of care or contract. These were found to be arguable, not frivolous, consistent with First American Bank of Kenya v Gulab P Shah.

The court adopted S.K. Tawadi v Veronica Muehlmann, holding the essence of Order 9 Rule 9 is to protect outgoing advocates from mischievous clients, and that failure to comply does not prejudice the other party. The interest of the outgoing advocate was addressed by a consent filed in the trial court. Non-compliance was a technicality that cannot defeat justice under Article 159(2)(d).

Under Order 42 Rule 6(2), stay requires demonstration of substantial loss. The Applicant relied on Shell Ltd v Kibiru, where substantial loss includes loss of money if payment is made and the recipient cannot repay. The Respondent did not rebut the claim that he is a person of straw, nor the existence of the security deposit in the joint advocates' account. Applying Butt v Rent Restriction Tribunal, the court exercised its discretion in favour of the Applicant.