West Kenya Sugar Co Ltd v Sostine Salamba Milimo [2022] KEELRC 957 (KLR)

The court applied section 79G and section 95 of the Civil Procedure Act and the Supreme Court's guidance in Nicholas Kiptoo Arap Korir Salat, requiring the whole period of delay to be explained. The period was accounted for by the High Court proceedings striking out the appeal for being filed in the wrong court and the dismissed transfer application, followed by this application within weeks. Counsel's error in filing in the wrong court could not be visited on the innocent litigant, and the court noted past jurisdictional uncertainty over WIBA matters.

Relying on S.K. Tawadi v Veronica Muehlmann, the court held that Order 9 Rule 9 is intended to protect the outgoing advocate, and its breach does not prejudice the other party. The consent to change advocates filed in the lower court satisfied the rule's purpose. Any procedural defect was a technicality that could not defeat justice under Article 159(2)(d) of the Constitution, which requires justice to be administered without undue regard to procedural technicalities.

Applying Order 42 Rule 6(2) and Shell Ltd v Kibiru & Another, the court held that substantial loss includes the risk of losing money paid if the Respondent cannot refund it. The Applicant's averment that the Respondent was a person of straw was unrebutted, and the deposit of security in a joint interest-earning account in the names of the trial advocates was undisputed. Guided by Butt v Rent Restriction Tribunal, the court found stay necessary so the intended appeal would not be rendered nugatory.

The test was whether the appeal was arguable and not frivolous. Examining the draft memorandum of appeal, the court identified complaints that the trial court erred in fact and law in finding liability without evidence of breach of duty of care or contract. Consistent with First American Bank of Kenya v Gulab P Shah, these were arguable issues deserving a day in court.