West Kenya Sugar Co Ltd v Jacob Wanja Weruga [2022] KEELRC 965 (KLR)

The Respondent contended the court was devoid of jurisdiction. The court noted the Applicant's earlier appeal, Kakamega High Court Civil Appeal No. 166 of 2018, was struck out before hearing for being filed in the wrong court, not on the merits. Since a party whose appeal is struck out as incompetent retains the right to restart the appellate process, the court could entertain the application for leave and any appeal subsequently filed if leave were granted.

Order 9 Rule 9 requires a court order or a consent between outgoing and incoming advocates after judgment. A consent was entered on 16th October 2021 and stamped by the trial court on 25th October 2021, before the application. Adopting Korir J in Simon Barasa Obiero, the court held the rule protects the outgoing advocate, and where his interests are secured and no prejudice is caused, non-compliance viewed through Article 159(2)(d) should be excused as a procedural technicality.

Judgment was delivered on 30th November 2018; the appeal filed in the High Court was struck out on 6th August 2021 as filed in the wrong court, and a transfer application was dismissed on 4th October 2021. Applying Section 79G CPA and George Kangethe Waruhiu, the court found the entire delay satisfactorily explained, and on perusal of the draft memorandum of appeal challenging liability and quantum found arguable points justifying admission of the appeal.

Order 42 Rule 6(2) requires substantial loss and security for due performance. The court found, contrary to the Applicant's assertion, no evidence that the decretal sum had been deposited in a joint account; the burden lay on the Applicant after denial by the Respondent. As the decree was monetary, costs and interest could cover prejudice, and following Butt v Rent Restriction Tribunal the discretion was exercised to preserve the appeal, but the security condition had to be met.