Onesmus Wachira Kariuki & 1 other v Letshego Kenya Limited & 1 other

3. In support of the application he avowed that he was dissatisfied with the judgment delivered on the 18/3/2024 in CMCC No 345 of 2021 in which the suit was dismissed in favour of the Respondents; the time for lodging the appeal lapsed on 18/4/2024; the reason for the delay in lodging the appeal is that his previous advocate on record in the lower court was hesitant to hand over the file to him for purposes of instructing his current advocate; he is willing to abide by any conditions set by this court; no prejudice will be suffered by the Appellant if the application is allowed; it is in the interest of justice that the application be allowed as prayed. 4. Opposing the application, the Respondents filed Grounds of Opposition dated 04/6/2024 stating that the application is fatally defective as it contravenes the provisions of Order 9 Rule 9 of the Civil Procedure Rules since the Appellants advocates were not properly on record; the Memorandum of Appeal and application were filed without unreasonable delay and lastly that the Appellants have not met the threshold for grant of stay of execution. 5. Accordingly, the Respondents thus urged the Court to dismiss the instant Application. 6. Parties were directed to file written submissions to canvass the application and they both complied. The Appellants filed submissions dated 20/9/2024 while the Respondents filed their submissions dated 12/8/2024. 7. I have considered the application and grounds of opposition, the proceedings herein, the written submissions by Parties Counsel as well as the applicable law. I find three issues herein arising for determination: i) whether the Appellants advocates are properly on record in this matter, ii) whether the court can admit the Memorandum of Appeal herein filed out of time and deem it as properly filed; and iii) whether the Appellants have satisfied the threshold for grant of stay of execution. whether the Appellants advocates are properly on record in this matter; 8. The essence of the ground of opposition raised by the Respondents under the provisions of Order 9 Rule 9 touches on the locus standi of an advocate to represent a client after delivery of judgment. The underpinning legal provisions for legal representation is outlined in Order 9 rules 5, 9 and 10 Civil Procedure Rules that; “ 5. Change of advocate [Order 9, rule 5.] A party suing or defending by an advocate shall be at liberty to change his advocate in any cause or matter, without an order for that purpose, but unless and until notice of any change of advocate is filed in the Court in which such cause or matter is proceeding and served in accordance with rule 6, the former advocate shall, subject to rules 12 and 13 be considered the advocate of the party until the final conclusion of the cause or matter, including any review or appeal. . Order 9 Rule 9 of the Civil procedure Rules provides that:- “9. Change to be effected by order of Court or consent of parties https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/17273/eng@2024-10-29 2

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“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. the proposed incoming advocate or party intending to act in person upon a consent filed between the outgoing advocate and as the case may be.” 9. There is nothing on record showing either that the Appellants’ advocates sought leave to represent the Appellants after judgment or that they executed and filed a consent between them and the Appellants’ previous advocate on such representation. 10. The issue of an Advocate’s locus gives the Court jurisdiction to address the matters raised by the Advocate so that without such locus the Court is divested of jurisdiction to hear him/her. 11. The provisions of Order 9 Rule 9 of the Civil Procedure Rules make it mandatory that for any change of Advocates after judgment has been entered to be effected, then there must be an order of the court upon application with notice to all parties or upon a consent filed between the outgoing advocate and the proposed incoming advocate. The reasoning behind the provision was well articulated in the case of S. K. Tarwadi vs Veronica Muehlmann [2019] eKLR where the judge observed as follows: “ …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….” 12. The court went further to quote with approval the holding by Hon. Sitati Judge, in Monica Moraa – vs- Kenindia Assurance Co. Ltd. [2010] eKLR where the court held as follows: “ ……there is no doubt in my mind that the issue of representation is critical especially in case such as this one where the Applicant’s advocates intent to come on record after delivery of judgment. There are specific provisions governing such change of advocate. In my view the firm of M/S Kibichiy & Co. Advocate should have sought this court’s leave to come on record as acting for the Applicant. The firm of M/S Kibichiy & Co. has not complied with the Rules and instead just gone ahead and filed Notice of Appointment without following the laid down procedures. The issue of representation is vital component of the civil practice and the courts cannot turn a blind eye to situations where the Rules are flagrantly breached……….” 13. As per the provision of Order 9 Rule 9 of the Civil Procedure Rules, the correct procedure that was to be followed in the present case, was that counsel coming on record ought to have sought leave of the court to come on record, then file and serve the notice of change of Advocates before filing the application to set aside the orders of the Court. 14. The Appellants in their submissions rely on the cases of Nicholas Kiptoo Arap Korir Salat vs Independent and electoral Boundaries Commission & 7 others (2015) and Kenya Commercial Bank Ltd vs Kenya Planters Co-operative Union (2010) where the common thread was the courts authority under Article 159 (2)(d) of the Constitution 2010 remained unfettered for the attainment of the ends of https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/17273/eng@2024-10-29 3

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justice and to prevent abuse of the court processes to avoid a matter being defeated due to procedural technicalities. 15. At the outset, I wish to state that failure by the Appellants’ advocates to seek leave to represent the Appellants after judgment or to execute and file a consent between the Appellants’ previous advocate on such representation under Order 9 Rule 9 of the Civil Procedure Rules is not a procedural technicality. It constitutes a process underpinned by statutory law and it is not a technicality of procedure curable under Article 159(2)(d) of the Constitution of Kenya 2010. Article 159(2)(d) of the Constitution is a legal imperative that it is exercised judiciously by courts of law. 16. See the case of Lalji Bhimji Shangani Builders & Contractors –vs- City Council of Nairobi [2012] eKLR where the Court held as follows: “ A party who without any justification decides not to follow the procedure laid down for orderly conduct of litigation cannot be allowed to fall back on the said objective for assistance and where no explanation has been offered for failure to observe the Rules of procedure the court may well be entitled to conclude that failure to comply therewith was deliberate.” 17. In the present case, the Appellants advocates, without leave of the Court, filed their certificate of urgency, Notice of Motion and Memorandum of appeal all dated the 7th May 2024 wherein they purported to be properly on record, and sought to have the court certify the matter as urgent, grant a stay of execution and admit the appeal out of time. This clearly offends the express provisions of Order 9 Rule 9 of the Civil Procedure Rules. 18. The provisions of Order 9 of the said Act do not impede the right of a party to be represented by an Advocate of his/her choice, but sets out the procedure to be adhered to when a party wants to change counsel so as to avert any undercutting and or chaos. Thus, a party so wishing to change his counsel must notify the court and other parties. 19. Although the Respondent has a Constitutional right to be represented, yet where there are clear provisions of the law regulating the procedure of such representation, the same should be adhered to. The procedure set out under Order 9 Rule 9 of the Civil Procedure Rules is mandatory and thus cannot be termed as a mere technicality. 20. Having found that this procedure was not followed by M/s Njoroge Wachira & Co Advocate, the said firm is not properly on record, and has no legal standing to move the court on behalf of the Appellants. On this issue alone the application is incompetent and ought to be struck out. whether the court can admit the Memorandum of Appeal herein filed out of time and deem it as properly filed 21. The judgement of the trial court was delivered on the 18th March 2024. The appellants filed the Memorandum of Appeal on 7th May 2024. The Appellants admit that the time for lodging the appeal had since lapsed as they had up to 18th April 2024 to lodge the appeal. This was about two months later. 22. The Law governing the filing of appeals from subordinate court to the High Court is Section 79G of the Civil Procedure Act which provides that:“ Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/17273/eng@2024-10-29 4

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any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order: Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time." 23. The 1st Appellant depones at paragraph 5 of the supporting affidavit that his advocate on record in the Lower Court record were hesitant to hand over the file to him for purposes of instructing his current advocate. The Appellants counsel submits that the Appellant file has since been released by the previous advocate and no bill of costs has been filed against the Appellants by the previous advocate indicating that all advocate fees has been settled. 24. What the 1st Appellant and his counsel are not telling this court is the reason why the previous advocate was hesitant in releasing the file and what efforts they made to get the file from him. There is no single proof of communication made to the alleged previous advocate regarding release of the lower court file. There is also no proof presented before this court to confirm that the previous advocate’s fees has since been settled as alleged. In addition, the mere filing of a Bill of costs is not proof of settlement of an advocate’s fees in the absence of proof of the actual settlement of the same. I would therefore disagree with this line of submission by the Appellants counsel. 25. The reason for delay given by the Appellants is not good and sufficient cause for not filing the appeal in time and the same does not satisfy this court. 26. In West Kenya Sugar Co Ltd v Jason Wafula Kalibo [2021] eKLR, the court held that:“ ...the period between the decision of the lower court and this Application is explained as has been held in George kangethe Waruthiu -vs Estina Nyamweru &another (2021) eKLR that the whole period of delay be explained. Section 79G of the Civil Procedure Act allows appeal to be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.” 27. . In the case of Dilpack Kenya Limited v William Muthama Kitonyi [2018] eKLR, Odunga J states that: “ ...If the appellant had a good case on the merits but is out of time and has no valid excuse for the delay, the court must guard itself against the danger of being led away by sympathy, and the appeal should be dismissed as time-barred, even at the risk of injustice and hardship to the appellant." 28. The Appellants having filed their application and Memorandum of Appeal out of time; this court finds that the appeal is incurably defective and similarly it has to be struck out. whether the Appellants have satisfied the threshold for grant of stay of execution. 29. The Appellants at prayer (c) of the application seek for an order that this Honorable Court grants a stay of execution of the judgment of Hon. J. Omburah (Mr), SPM delivered on 18/3/2024 pending hearing and determination of this application. In my view the Appelants prayer for stay of execution is only limited to the determination of the application herein. 30. The law relating to stay of execution pending Appeal is Order 42 Rule 6 (2). It is also important to state that the power to grant an order of stay is discretionary and is dependent on certain conditions being met. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/17273/eng@2024-10-29 5

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31. 32. Order 42 rule 6(1) and (2) of the Civil Procedure Rules,2010 provides as follows: “ (1) No appeal or second appeal shall operate as a stay of execution or proceeding 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. (2) No order for stay of execution shall be made under subrule (1) unless – (a) the court is satisfied that substantial loss may result to the applicant unless the order is made; and (b) that the application has been made without unreasonable delay; and (c) 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.” In Vishram Ravji Halai vs. Thornton & Turpin Civil Application No. Nai. 15 of 1990 [1990] KLR 365, the Court of Appeal held that whereas the Court of Appeal’s power to grant a stay pending appeal is unfettered, the High Court’s jurisdiction to do so under Order 41 rule 6 of the Civil Procedure Rules is fettered by three conditions namely: i. establishment of a sufficient cause and without unreasonable delay, ii. satisfaction of substantial loss and iii. the furnishing of security. 33. On the first criterion as set out in Order 42 Rule 6 (2) i.e. Whether Applicants/Appellants have brought this application without unreasonable delay. The judgement of the trial court was delivered on the 18th March 2024. The Appellants filed the instant application on 7th May 2024, two months later with no convincing reason tendered before court. This court has already found that the application was not brought without unreasonable delay. 34. The second criterion is whether the Applicants/Appellants have demonstrated that they are bound to suffer substantial loss if orders of stay of execution are not granted. The question that follows is what comprises substantial loss. In Silverstein Vs Chesoni (2002)1 KLR 867 it was held that “ The issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the Appeal nugatory” 35. The 1st Appellant/Applicant has not shown in the application or supporting affidavit any loss that the Appellants stand to suffer if orders sought are not granted. In any event, it is my considered view https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/17273/eng@2024-10-29 6

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that this being a claim with monetary value, any loss to be suffered by either party can adequately be compensated by an award in damages. 36. On the third criterion as whether the Applicants/Appellants have furnished security. The 1st Appellant/Applicant at paragraph 6 of the supporting affidavit depose that he is willing to abide by any conditions set by this court and submits that the Appellant has settled 90% of the Auction price and no prejudice will be suffered by the Respondent. The Appellants have not provided any security before this court and therefore they have failed to satisfy the requirement for furnishing security. 37. This court finds that the Appellants have not met the three conditions set out under 42 rule 6 (2) of the Civil Procedure Rules,2010 to warrant grant of stay of execution order. Similarly, this prayer is declined. 38. The court is under a duty to hold the rings of justice even handed; it should not offer any illegitimate advantage to either party. 39. In the end, I make the following orders:- 40. a. The Notice of Motion application and the Memorandum of Appeal both dated 7th May 2024 having been improperly filed in Court, be and are hereby struck out. b. Costs shall be in favour of the Respondents. Orders accordingly. DATED, SIGNED & DELIVERED VIRTUALLY AT MACHAKOS ON 29TH OCTOBER 2024. NOEL I. ADAGI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/17273/eng@2024-10-29 7

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