West Kenya Sugar Co. Ltd v Titus Chivuyi Mulela [2022] KEELRC 962 (KLR)

The Applicant had earlier filed Kakamega High Court Civil Appeal No. 29 of 2019, which was struck out for being filed in the wrong court. The court held it is trite law that a party whose appeal has been struck out as incompetent may restart the appellate process, so the present application was properly before it.

Order 9 Rule 9 requires a court order or consent for change of advocates after judgment. A consent was filed on 28th October 2021 before the application. Following Article 159(2)(d) on procedural technicalities and Korir J in Simon Barasa Obiero, the court held that where the outgoing advocate's interests are protected and no prejudice is suffered, insistence on a formal court order would be a procedural technicality.

Judgment was delivered on 18th February 2019; the appeal filed in the High Court was struck out on 6th August 2021 for being in the wrong court and the transfer application dismissed on 4th October 2021. Citing George Kangethe Waruhiu, the court held the entire period of delay was explained, and the draft memorandum challenging liability and quantum disclosed arguable points warranting extension under Sections 79G and 95 of the Civil Procedure Act.

Applying Order 42 Rule 6(2) and the Butt v Rent Restriction Tribunal principles, the court found no evidence of the alleged deposit of security of performance, which the Respondent denied and the Applicant failed to prove. Substantial loss was arguable since the Respondent was said to be a person of straw; the court granted stay conditioned on the decretal amount being deposited in a joint interest-earning account within 14 days, failing which the orders would lapse automatically.