Magdalene M. Mjomba & 3 others v Information and Communication Technology Authority

3. That the applicant, being dissatisfied with the aforesaid judgment, lodged the appeal with the Court of Appeal, which appeal is still pending determination. That the applicant filed an application dated 23/10/2022 and obtained an order for a stay of execution of the aforesaid judgment on 29/04/2024, to last until determination of the appeal. 4. The deponent has stated that the respondents recently filed a party and party bill of costs dated 24/06/2025 (the bill of costs) which was fixed to taxation on 11/12/2025. That in view of the pending appeal which also questions the award on costs, the applicant is apprehensive that unless the order for stay is granted and the taxation proceedings are permitted to proceed, the respondents are likely to pursue their costs from the applicant thereby rendering the appeal nugatory and an academic exercise especially on the issue of costs. 5. It is the deponent’s averment that given that the issue of costs constitutes one of the grounds of the appeal, allowing the bill of costs to proceed to taxation while the appeal subsists would contravene the sub judice rule. The applicant urged that it would serve the interest of justice for the prayers sought in the instant Application to be granted. Replying Afidavit 6. The application is opposed by the respondents through the replying affidavit sworn on 15/12/2025, in which it is deposed that the application is incompetent and fatally defective for having been filed by a private advocate without the requisite authority and without a proper notice of change of advocates. That the applicant being a public body, can only be represented in legal matters by the Office of the Attorney General or a duly appointed State Counsel. The respondent has urged that the application be struck out. 7. On the merits of the application, it was deposed that it has not been demonstrated that the taxation proceedings will render the pending appeal nugatory or otherwise prejudice the applicant; that taxation is a lawful process which ought to be allowed to proceed; that there has been an inordinate delay in bringing the instant Application and that the applicant has shown no diligence in expediting the prosecution of the appeal. 8. The applicant filed a further affidavit sworn on 19/12/2025 in which it is deposed that on 25/10/2023, the Office of the Attorney General approved a request by the applicant to be represented in the present matter by an external advocate. That subsequently, the applicant engaged the current advocates, M/s Adrian Kamotho Njenga & Co. Advocates, to take over conduct of the matter. That the said advocates entered into a consent with the Office of the Attorney General regarding representation, which consent was thereafter filed in court accompanied by a notice of change of advocates. 9. The applicant stated that it is keen on prosecuting the appeal and that submissions have since been filed therein. That the applicant is currently awaiting directions on the hearing thereof and therefore the application is both competent and merited before this court. 10. The respondents also filed a further affidavit sworn on 21/01/2026, reiterating that the application is intended to delay the matter and prevent the respondents from enjoying the fruits of their judgment; that the consent referenced above does not constitute an order of the court; that no leave was ever sought or granted, for the current advocates to come on record in the matter, as is the legal requirement and that in the absence of the requisite leave of the court, the current advocates are incompetently on record and hence the application ought to be struck out. 11. The respondent stated, further, that as it stands, there are no orders of stay of execution in place regarding the judgment and that should this court be inclined to allow the instant application, then https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7472/eng@2026-04-21 2

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this should be conditional to the applicant’s depositing the entire decretal amount in court or in a joint interest earning account. Submissions 12. The parties dispensed with the motion by filing and exchanging written submissions. The applicant submitted that the issue of costs is sub judice since the same is currently pending before the Court of Appeal; that unless an order of stay is granted, the taxation proceedings will proceed rendering the appeal nugatory; that there is no guarantee that the applicant will thereafter be able to recover its costs from the respondents, thereby rendering the appeal an academic exercise. 13. The applicant relied on Stanley Kangethe Kinyanjui v Tony Ketter & 5 others [2013] KECA 378 (KLR) in which the Court of Appeal reasoned, inter alia, that: “ Whether or not an appeal will be rendered nugatory depends on whether or not what is sought to be stayed if allowed to happen is reversible; or if it is not reversible whether damages will reasonably compensate the party aggrieved.” 14. In sum, the applicant submitted that since the issue of costs is still pending before the Court of Appeal, it is necessary for the order of stay to be granted in respect of the taxation proceedings, pending the determination of the appeal. 15. The respondents submitted that the instant application lacks merit and is purely intended to frustrate and delay their access to the fruits of their judgment. They reiterated that in the absence of any order staying execution of the judgment, the applicant is not deserving of the prayers sought and that should this court deem otherwise, then an order ought to be made, directing the applicant to provide security for the due performance of the decree. Analysis and Determination 16. I have considered the rival arguments supporting and opposing the application. On whether the application should be struck out for being fatally defective and incompetent by virtue of being filed by a firm of advocates who are not properly on record, I have read order 9, rule 9 of the CPR which stipulates 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— 17. (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.” I have noted from the record that it is not controverted that judgment was delivered in the present matter and that the applicant was at all material times represented by the Office of the Attorney General. I have seen copies of a letter dated 25/10/2023, a consent (undated); and a notice of change of advocates dated 7/08/2024 as annexures “ICTA-1,” “ICTA-2” and “ICTA-3” respectively, annexed to the further affidavit of Pauline Wamuyu Kimotho, to support that the applicant’s averment that following the approval of the Office of the Attorney General to have the applicant engage an external advocate or firm of advocates to take over the matter from the State Counsel, the firm of Adrian Kamotho Njenga & Co. Advocates was engaged by the Applicant. The consent on record, Annexure https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7472/eng@2026-04-21 3

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“ICTA-2,” though undated, is shown to have been signed by the outgoing and incoming advocates. The record shows, further, that both the notice of change and the consent were filed in court. The proceedings of the court dated 24/09/2024 show that the consent was served upon the advocate or firm of advocates acting for the respondents, which position has not been denied. Therefore, it is evident that the change of advocates was brought to the court’s attention as well as the attention of the advocates acting for the respondents. I am inclined to find that the current advocates for the applicant are properly on record. 18. Turning on the merits of the application, I am guided by order 42, rule 6 (1) of the CPR which provides that: “ 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.” 19. In Re Global Tours & Travel Ltd HCWC No. 43 of 2000 (UR), the court (Ringera, J, as he then was) succinctly set out the applicable considerations in determining an application for stay of proceedings in the following manner: “ As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of justice...the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously.” 20. As noted in the above authority, the need to avoid the unnecessary inconvenience to use of judicial time and back and forth of proceedings would be of paramount consideration in an application of such nature, as would be the question on whether the appeal will be rendered nugatory if the subject proceedings are not stayed. As observed by the Court (Onyango Otieno, J, as he then was) in Niazsons (Kenya) Ltd v China Road & Bridge Corporation (Kenya) Ltd. Nairobi HCCC No. 126 of 1999: “ Where the appeal may have very serious effects on the entire case so that if stay of proceedings is not granted the result of the appeal may well render the orders made nugatory and render the exercise futile, stay (stay of proceedings) should be granted.” 21. On the subject whether the delay in question is reasonable or otherwise, from my study of the record and material presented, it is apparent that upon delivery of judgment in the present matter on 21/07/022, the applicant filed a notice of appeal dated 27/07/2022 indicating its intention to lodge an appeal before the Court of Appeal, and subsequently filed an application dated 1/08/2022 seeking a https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7472/eng@2026-04-21 4

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stay of execution of the judgment, pending hearing and determination of the suit. The said application was dismissed vide a ruling delivered on 29/09/2023. 22. The record shows that the applicant thereafter filed an application dated 23/10/2023 seeking stay of execution of the said judgment, pending hearing and determination of the appeal. This application was unopposed and was allowed by the court on 15/11/2023. It is thus clear that there is in place an existing order for a stay of execution pending appeal, contrary to the assertions made by the respondents. 23. The record shows, further, that the applicant proceeded to file a memorandum of appeal dated 19/09/2024 which appeal is said to be pending before the Court of Appeal. The appeal notwithstanding, the Respondents filed the bill of costs dated 24/06/2025 which was fixed for hearing on 11/12/2025. It is that taxation that triggered the instant application which was brought on or about 8/12/2025, being less than six (6) months from the date of lodging the bill of costs. 24. Upon my consideration of all the foregoing sequence of events which took place during the intervening period and upon noting that the orders being sought relate to the taxation of the bill of costs, I do not deem the delay in bringing the instant motion to be inordinate or unreasonable. 25. On whether the applicant has an arguable appeal, I have perused a copy of the memorandum of appeal dated 19/09/2024 attached to the supporting affidavit and marked as annexure “ICTAK-3”, I have observed that the pending appeal is seeking to set aside the entire judgment delivered in the present matter, which would extend to the costs resulting therefrom. This appeal is currently pending before the Court of Appeal. In the circumstances, I am of the considered view that the issue of whether or not an arguable appeal exists would be a preserve of the Court of Appeal. 26. On my part, after considering the nature of the appeal, I find it evident that unless the taxation proceedings herein are stayed, it is more plausible than not that the objects of the appeal will be defeated, thereby rendering the appeal nugatory. Moreover, it would not constitute proper use of judicial time to allow the two concurrent active proceedings to run, involving the same parties and touching on the subject matter of costs relating to the judgment being appealed against. In any event, I hold the view that any prejudice likely to be suffered by the respondents can be adequately compensated through an award of costs. 27. Consequently, I am persuaded to exercise my discretion in favour of the applicant by allowing the notice of motion dated 8/12/2025 in the following terms of prayer four (4) and five (5). 28. It is so ordered. DATED, SIGNED AND DELIVERED THIS 21ST DAY OF APRIL, 2026. S. N. MUTUKU JUDGE In the presence of: 1………………………………for the Applicant. 2………………………………for the Respondents. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7472/eng@2026-04-21 5

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