Zaam Industries Limited v Fibanda (Appeal E056 of 2025) [2025] KEELRC 2025 (KLR)

The court adopted the reasoning in Kiarie v Njihia and Peter Chere Kiiru that Order 9 Rule 9 applies only where an advocate comes on record after judgment in the same proceedings, suit or action, not in an ancillary action such as an appeal or miscellaneous application. The process in the lower court was complete, no prejudice could be occasioned to the former advocates, and costs of the appeal would be dealt with by the appellate court.

Under Section 79G of the Civil Procedure Act and Rule 12(2) of the ELRC (Procedure) Rules, 2024, the appeal ought to have been filed within 30 days of the judgment delivered on 18th December 2024. Applying the Salat principles, the court found the mistake of the advocate established, the application made without unreasonable delay, and good cause disclosed. The memorandum of appeal filed without leave was deemed duly filed under section 20 of the ELRC Act.

The ELRC (Procedure) Rules, 2024 being silent on the conditions for stay, the court applied Order 42 Rule 6(2) of the Civil Procedure Rules. Substantial loss was demonstrated - the applicant's assets were likely to be sold and there was no certainty the respondent could refund the decretal sum - and the application was made without unreasonable delay. However, the applicant did not address security, so the court could not issue an unconditional stay and tied the stay to a conditional deposit, guided by Butt v Rent Restriction Tribunal.