Scotia Holdings Limited v Ravji & another

2. The application is brought on the grounds that following the delivery of Judgement herein on the 5th May 2022, the Plainti/ Respondent led a bill for taxation on the 17th January 2024 which was taxed at an amount of Kshs 2,400,000. That following the Taxation the Defendant / Applicant sought to be furnished with reasons for the Taxation which have not been availed to date. That the counsels have just been instructed to take over the matter which is scheduled for Notice to Show Cause on 11th February 2025. 3. The application is supported by the adavit of Devraj Lalji who deposes that the Defendant has on several occasions requested to be furnished with the reasons for taxation but have not been successful. He attributes the delay in ling the reference on the failure to avail reasons and urges the court to allow the orders as the Defendant is likely to be prejudiced if execution is allowed to take place. 4. The Plainti/Respondent opposed the application vide a Replying adavit sworn by Morrison Wayaya on the 3rd March 2025. He stated that there had been inordinate delay on the part of the applicants as the Judgement had been rendered 3 years ago and the bill of costs taxed one year prior. That the Defendant/ Applicants have not appealed against the Judgement. He was categorical that the Applicants have not furnished the court with any evidence to prove that they have made eorts to obtain the reasons for the Ruling. On the 12th March 2025 the court gave directions that the application be canvassed by way of written submissions. The Applicants led submissions dated 28th May 2025 in support of the application while the Respondents led submissions dated 28th May 2025. 5. The court has considered the application, the adavits and the submissions by both parties. The court distils the following issue for determination;Whether the court should grant leave to the rm of Wanyanga and Co to come on record after JudgementWhether the court should set aside the Notice to Show Cause / grant stay of execution 6. The prayer by Wanyanga & Co Advocates to come on record after Judgement is guided by Order 9 rule 9 of the Civil Procedure Rules which stipulates as follows: -9. When there is a change of advocate, or when a party decides to act in person having previously engaged an advocate, after judgment has been passed, such change or intention to act in person shall not be eected without an order of the court— a. upon an application with notice to all the parties; or b. upon a consent led between the outgoing advocate and the proposed incoming advocate or party intending to act in person as the case may be. 7. This reasoning behind this provision was articulated in S K Tarwadi vs Veronica Muehlmann [2019] eKLR wherein the court observed that: “ …In my view, the essence of the Order 9 Rule 9 of the CPR was to protect advocates from the mischievous clients who will wait until a judgment is delivered and then sack the advocate and either replace him… 8. In this case the application has been served upon the Respondent as evidenced by the adavit of service. There is no objection by the rm of Othieno & Co Advocates to the rm of Wanyanga taking over the matter. The court will thus allow this application. 9. Rule 11 of the Advocates Renumeration Order provides for objections to Taxation thus; “Should any party object to the decision of the taxing ocer, he may within fourteen days after the decision give notice in writing to the taxing ocer of the items of taxation to which he objects. The taxing ocer shall forthwith record and forward to the objector the reasons for his decision on those items and https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18456/eng@2025-12-04 2

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the objector may within fourteen days from the receipt of the reasons apply to a judge by chamber summons, which shall be served on all the parties concerned, setting out the grounds of his objection.” 10. While the Defendant/ Applicant avers that the delay in ling the Reference was occasioned by the failure of the Taxing Master to provide reasons, there is no letter requesting reasons attached to the adavit in support of the application. The court on its own motion looked through the E ling system and was only able to glimpse a letter requesting reasons dated 19th December 2023 by the advocate now seeking to come on record. Even if the court were to assume the date was a typographical error, the request has been made by a stranger as the advocate had not by then been granted leave to come on record. I therefore nd that there is no evidence that the Defendant/ Applicant has made any eorts to obtain the reasons for taxation. 11. The principles that guide the Court in applications for stay of execution pending appeal are well settled. Order 42 rule 6(2) of the Civil Procedure Rules provides as follows: No order for stay of execution shall be made under subrule (1) unless— (a) the court is satised that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and (b) such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant. 12. These principles were summarized in Vishram Ravji Halai v Thornton & Turpin Civil Application No. Nai. 15 of 1990 [1990] KLR 365, wherein the Court of Appeal held that whereas the Court of Appeal’s power to grant stay pending appeal is unfettered, the High Court’s jurisdiction to do so under Order 42 rule 6 of the Civil Procedure Rules is fettered by three conditions namely, establishment of a sucient cause, satisfaction of substantial loss and the furnishing of security. Further the application must be made without unreasonable delay. 13. The Applicant cites delay in obtaining reasons for taxation as ground for delay in seeking stay of execution. In view of my ndings on the Applicants failure to request for reasons, there is no explanation for the delay in ling the instant application. Even worse the Applicant does not oer any security. 14. In considering an application for stay the court has to balance the interests of the Aplicant with those of the Respondent as highlighted in the case of M/s portreitz maternity -vs- James Karanga Kabia civil appeal no. 63 of 1997 where the court stated; “ That right of appeal must be balanced against an equally weighty right, that of the Plainti to enjoy the fruits of the judgment delivered in his favour. There must be a just cause for depriving the Plainti of that right”. 15. The Defendant/ Applicant have failed to provide any reasons for the great delay in ling this application. I therefore nd that the application has no merit and save for the prayer that the rm of Wanyanga and Co be allowed to come on record for the Defendant is dismissed with costs. It is so ordered. RULING SIGNED DATED AND DELIVERED VIA MICROSOFT TEAMS THIS 4TH DAY OF DECEMBER 2025 JUDY OMANGE JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18456/eng@2025-12-04 3

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In the presence of Court Assistant Catherine Mr. Otieno for Defendant/Respondent https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18456/eng@2025-12-04 4

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