Anisa Said Rashid v Abdulwahab Abrar Sheikh

3. Abdulwahab Abrar Sheikh (the Respondent) is opposed to the application. In his Replying Affidavit sworn on 12 th January 2026, the Respondent avers that in the judgment delivered on 21st August 2025, the Appellant was ordered by the trial Court to do the following; 1) Vacate the suit land; 2) Give vacant possession to the Respondent by removing her house without land within 90 days of the judgment in default the house without land be demolished and the OCS Nyali to ensure compliance; and 3) Pay outstanding ground rent arrears of Ksh 140,000 plus accruing ground rent from the date of filing of the suit. 4. It is the Respondent’s case that the Appellant has never complied with any of the orders issued by the trial Court and yet the Appellant has never obtained any orders of stay of execution. The Respondent asserts that the Appellant’s house was demolished in compliance with the judgment of trial Court. RULING Page 2 of 9 MSA. ELCA. E062 OF 2025

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5. In response to an earlier Notice of Motion dated 23 rd October 2025, the Respondent had filed a Notice of Preliminary Objection dated 7th November 2025 objecting to the same on the grounds that: 1) The Firm of J. O. Magolo & Company Advocates are not properly on record for the Appellant; 2) That the Appeal and the application before the Honorable Court is a clear contravention of Order 9 rule 9 of the Civil Procedure Act regarding representation of a party to a suit after judgment has been entered and should therefore be rejected; and 3) That the Memorandum of Appeal and Notice of Motion application dated 23rd October 2025 are fatally defective, in competent, bad in law and should be struck out with costs to the Respondent. 6. By the said Motion dated 23 rd October 2025, the Appellant had sought an order of stay of execution of the judgment delivered on 21st RULING August 2025. On 20th January 2026, the Page 3 of 9 MSA. ELCA. E062 OF 2025

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Appellant’s Advocates informed the Court that they had decided to abandon the application as the same had been overtaken by events. While the said application was accordingly treated as abandoned the aspects of the Preliminary Objection relating to the Memorandum of Appeal were yet to be determined. 7. Order 9 Rule 9 of the Civil Procedure Rules provides as follows; “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 effected without an order of the Court (a) Upon an application with notice to all the parties; or (b) Upon a consent filed between the outgoing advocate and the proposed incoming Advocate or party intending to act in person as the case may be.” RULING Page 4 of 9 MSA. ELCA. E062 OF 2025

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8. The purpose of the above Rule was certainly to protect the interest of the advocate who handled the case up to the judgment especially where there were unpaid legal fees. It would also prevent procedural confusion during post judgment execution proceedings. I was however not persuaded that the Rule barred a litigant who is aggrieved by the judgment from filing an Appeal to a higher Court through a different firm of advocates and/or that it would render any Memorandum of Appeal filed by the new advocate to be fatally defective and/or incompetent. Accordingly, I did not find any merit in the Preliminary Objection and the same is dismissed. 9. In her application before the Court, the Appellant has sought for an order directing the Respondent to restore her house to its former condition before this Appeal, can be heard. It is the Appellant’s case that the Respondent has proceeded to demolish her house while he was fully aware that this matter was pending before the Court. RULING Page 5 of 9 MSA. ELCA. E062 OF 2025

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10. From the material placed before this Court, it was apparent that in the judgment delivered by the Lower Court on 21 st August 2025, the Appellant was ordered to vacate the suit land and to grant vacant possession to the Respondent by removing her house without land within 90 days of the judgment. In default, the Respondent was given the liberty to demolish the house and evict the Appellant under the supervision of the police. 11. Aggrieved by the said judgment the Appellant lodged the Memorandum of Appeal herein dated 15 th September 2025 seeking to set aside the said judgment. Subsequently and by the Notice of Motion dated 23rd October 2025, the Appellant sought an order for stay of execution of the judgment. When the application was placed before Honorable Justice Y. Angima under Certificate of Urgency on 24th October 2024, the Learned Judge gave directions thereon as follows; “1. That the application is not certified urgent since the impugned decree was passed on 21.08.2025; RULING Page 6 of 9 MSA. ELCA. E062 OF 2025

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2. That the application shall be served for inter-partes hearing in the normal manner on 24th November 2025 before ELC Court 3; 3. That the Respondent shall file and serve a response to the application within 14 days upon service; and 4. That the Appellant shall be at liberty to file a further or supplementary affidavit within 7 days upon service of response.” 12. As it were and contrary to the Appellant’s assertions, the Court did not grant any order staying execution of the judgment of the Lower Court. As the Appellant’s Counsel on record admitted in Court, the Respondent had waited for the expiry of the 90 days before moving in to demolish the house. 13. It is trite law that an Appeal as of itself does not automatically stop a Court Order or Judgment from being RULING Page 7 of 9 MSA. ELCA. E062 OF 2025

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carried out. That much is clear from a reading of Order 42 Rule 6 (1) of the Civil Procedure Rules which provides thus; “ No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the Court appealed from may order but, the Court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the Court appealed from, the Court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the Court from whose decision the appeal is preferred may apply to the appellate Court to have such order set aside.” 14. In the matter herein, there were no orders of stay of execution as at the time that the decree of the Lower Court was executed and I did not therefore find any basis upon which I could direct the Respondent to restore the house that was demolished. RULING Page 8 of 9 MSA. ELCA. E062 OF 2025

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15. It follows that I did not find any merit in the Motion dated 18th December 2025. The same is hereby dismissed with costs to the Respondent. Ruling dated, signed and delivered in open court and virtually at Mombasa this 24th day of September, 2026. ………………………….. J.O. OLOLA JUDGE In the presence of: a) Ms. Firdaus Court Assistant. b) Mr. Karani holding brief for Magolo Advocate for the Appellant c) RULING Mr. Iddi holding brief for Tolo Advocate for the Respondent Page 9 of 9 MSA. ELCA. E062 OF 2025

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