Premier Kenya Limited v Omwansa (Civil Appeal E024 of 2024) [2025] KEHC 19721 (KLR) (4 July 2025) (Ruling) Neutral citation: [2025] KEHC 19721 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT KISII CIVIL APPEAL E024 OF 2024 TA ODERA, J JULY 4, 2025 BETWEEN PREMIER KENYA LIMITED ................................................................ APPELLANT AND GEORGE ATENGA OMWANSA ........................................................ RESPONDENT (An appeal from the entire judgment of the trial learned magistrate Hon. CAROLINE RONO (RM) in KISII SCCOMM NO. E001 OF 2013 dated and delivered on 1{{^st}} February 2024) RULING 1. The matter before this Court is the Respondent/Applicant's application dated 2nd May 2025, brought under certificate of urgency, seeking to arrest the judgment scheduled for delivery on 5th May 2025, and to be granted leave to file submissions and argue the appeal. The application is supported by grounds on the face of it; a certificate of urgency dated the same day, and a supporting affidavit by George Atenga Omwansa. 2. The Appellant/Respondent opposed the application through a Replying Affidavit sworn by Bernard Mubinje Wamalwa on 7th May 2025, arguing that the Respondent was duly served with all relevant documents and that the application is an afterthought aimed at delaying justice. 3. Being dissatisfied by the decision of the lower court, the appellants filed this application 2nd May 2025 on the following grounds; a) That the judgment is slated for delivery on the 5th day of May 2025 by the honorable court. b) The Respondent/Applicant was not aware of the appeal, as his advocate on record in the lower court Mr. R.M Machage did not inform him of the appeal. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19721/eng@2025-07-04 1
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c) That the Appellant /Respondent did not serve/or inform the Respondent/Applicant of the appeal. d) That the Respondent/Applicant had no reason to believe that an appeal had been lodged, since the Appellant /Respondent had paid the lower court award; hence he honestly believed that the lower court matter had been settled. e) That Respondent/Applicant only learnt of the appeal when his advocate on record in the lower court called him and informed him that there was an appeal filed and the same was pending judgment. f) That upon learning of the same. The Respondent/Applicant immediately instructed his advocate now on record to represent him and file the present application. g) That there is need for the honourable court to arrest its judgment to enable the Respondent/ Applicant file his submissions and argue the appeal. h) That having obtained the record of appeal, submission by the Appellant/Respondent, there is need for the interest of justice for the honorable court to allow the Respondent/Applicant to file submissions and argue the appeal to enable the court to understand the real issue raised. i) That failure to appear before court and defend the appeal was due to mistake of the Respondent`s/Applicant`s advocate on record in the lower court not informing him of the appeal hence mistake of counsel should not be visited on an innocent client. j) That the Respondent/Applicant will suffer great prejudice and injustice if the judgment is not arrested and he is allowed to file his submissions and argue the appeal. 4. I have seen the notice of change of advocates dated 2.5.25 filed by M/S Okari and CO. Advocates to come on record for the applicant/respondent herein. Issues for Determination 4. I have carefully considered this memorandum of appeal, the record of proceedings before the lower court as well as the written submission filed by the appellant. The following issues arise for determination: a. Whether the firm of B.N Okari and Co. Advocates are properly on record in this case. b. Whether the judgment scheduled for 5th May 2025 should be arrested to allow the Respondent/Applicant to participate in the appeal. c. Whether the application has been brought in good faith and is merited in the interest of justice. Analysis And Determination 5. On Whether the firm of B.N Okari is properly on record for the applicant /respondent. They filed a notice of appointment of Advocates dated 2.5.25. The firm on R.M Machage is on record for the applicant in the lower court file. Order 9 rule 9 (b) of the Civil Procedure rules provides that - 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. It is clear that the firm of Ogari has not complied with the said https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19721/eng@2025-07-04 2
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provision and thus it is not properly on record. I proceed to strike out the notice of appointment, application and the submissions herein. I need not determine the other issues since the application has been struck out 6. In view of the foregoing, I make the following orders: i. That the application dated 2nd May 2025 is struck out ii. The judgment in the appeal be delivered on 11.8.25 iii. Costs to the respondent/appellant. T.A ODERA JUDGE 4.7.25 Delivered Virtually Via Teams Platform In The Presence Of: N/A for Applicant Mr. Wamalwa for the Respondent Court Assistant - Kipchirchir https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19721/eng@2025-07-04 3
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