HCCOMM MISC. E1267 OF 2020 REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI COMMERCIAL AND TAX DIVISION MISCELLANEOUS APPLICATION NO. E1267 OF 2020 MOHINDER KAUR ........................................ PLAINTIFF/RESPONDENT VERSUS DONALD ODHIAMBO RABALA T/A RABALA & CO. ADVOCATES ......................... DEFENDANT/APPLICANT RULING 1. The scales of justice must meticulously balance a litigant’s statutory right of appeal against the equitable entitlement of a successful party to immediately enjoy the fruits of their judgment. This delicate equilibrium is particularly tested when the judgment debtor is an Advocate holding client funds in trust. A Court of law ought not to allow the appellate process to be wielded as a shield to perpetuate the unlawful retention of funds held in a fiduciary capacity. Background Facts Page 1 of 7
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HCCOMM MISC. E1267 OF 2020 2. Before this Court is the Defendant/Applicant’s Notice of Motion dated 26th November, 2025. It is brought under Order 42 Rule 6 of the Civil Procedure Rules, 2010. The Applicant seeks to stay the proceedings (effectively seeking a stay of execution of the judgment delivered on 23rd January, 2025) pending the hearing and determination of Court of Appeal Civil Appeal No. E639 of 2022. 3. The Applicant seeks the following prayers: 1. Pending the hearing and determination of Court of Appeal Civil Appeal No. COACA E639 of 2022, the High Court proceedings in Originating Summons No. 1267 of 2020 Mohinder Kaur v Donald Odhiambo Rabala t/a Rabala & Company Advocates be stayed. 2. In the alternative, all further steps, mention dates, or hearings in Originating Summons No. 1267 of 2020 be stayed pending determination of the said appeal. 3. Costs of this application be in the cause. 4. Any other relief that this Honourable Court deems just and equitable in the circumstances. Page 2 of 7
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HCCOMM MISC. E1267 OF 2020 4. The genesis of this matter is an Originating Summons filed by the Plaintiff client to recover proceeds from the sale of land (L.R. No. 209/3754) handled by the Applicant in his capacity as her advocate. The total purchase price was Kshs 67,000,000. While the Applicant disbursed a portion of the funds, he retained a significant balance. Following the taxation of the Applicant's Advocate-Client Bill of Costs on 12th November, 2021, this Court (Visram, J.) delivered a judgment on 23rd January, 2025, finding that the Applicant unlawfully withheld Kshs 13,152,047. The Court ordered the Applicant to remit the said sum to the Plaintiff within 14 days, failing which execution would issue. 5. The Applicant now seeks to stay these proceedings, arguing that an appeal (E639 of 2022) challenging a prior taxation ruling by the Deputy Registrar on 9th September, 2022, is pending. He contends that failing to grant the stay would render his appeal nugatory and cause substantial loss. The Plaintiff opposes the application, asserting that the judgment stems from a 2025 decision, that the application is plagued by inordinate delay, and that no security for due performance has been offered. Page 3 of 7
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HCCOMM MISC. E1267 OF 2020 Issues for Determination 6. The Court has considered the Application, the response and the submissions made on behalf of the parties. The Court frames a single issue for determination: (a) Whether the application is merited? Analysis 7. The primary issue for determination is whether the Applicant has satisfied the tripartite conditions for the grant of a stay of execution under Order 42 Rule 6(2) of the Civil Procedure Rules: (a) demonstration of substantial loss; (b) filing without unreasonable delay; and (c) provision of security for the due performance of the decree. 8. This dispute centres on a money decree. The jurisprudence of the Court of Appeal and the High Court on staying money decrees is well-settled. In Oraro and Rachier Advocates v. Co-operative Bank of Kenya Limited [2000] KECA 311 (KLR) the Court of Appeal established the principle that where the decree sought to be stayed is a money decree, a stay will generally not be Page 4 of 7
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HCCOMM MISC. E1267 OF 2020 granted if the respondent is capable of refunding the decretal sum should the appeal succeed. Furthermore, a money decree does not inherently cause "substantial loss" simply because the judgment debtor is required to pay. The reason being payment of a lawful decree is a legal consequence, not an irreparable injury. 9. Crucially, the Court must examine the relationship between the parties. It is trite law that the Advocate-client relationship is a highly fiduciary one, characterized by special confidence and absolute trust. An Advocate holding client funds does so as a trustee. In this matter, the sum of Kshs 13,152,047 as adjudged by Visram, J. constitutes the Plaintiff's own money, realized from the sale of her property. The Applicant's legal fees have already been taxed and quantified by the Court. 10. The Applicant argues he will suffer prejudice if the stay is not granted. This Court must ask: what prejudice does an Advocate suffer by complying with a Court order to remit his client's money? The answer is none. The funds in question do not belong to the Applicant; they belong to the Plaintiff. Returning money that is held in a fiduciary Page 5 of 7
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HCCOMM MISC. E1267 OF 2020 capacity to its rightful owner cannot, by any stretch of legal imagination, constitute "substantial loss" or "irreparable hardship." The only prejudice suffered here is by the Plaintiff, who has been unlawfully deprived of the fruits of her real estate transaction for several years. 11. Moreover, the Applicant has not made an offer to deposit security for the due performance of the decree, which is a mandatory statutory requirement under Order 42 Rule 6(2)(b) for the grant of a stay in a money decree. There is no offer to have the monies deposited in an interest earning joint account in the name of Counsel for the parties or at least have the monies secured by being deposited to Court. 12. In balancing the equities, the fiduciary duty owed by the Applicant strictly militates against granting the stay. Allowing an advocate to utilize the appellate process to indefinitely retain a client's funds undermines the integrity of the legal profession and defeats the cause of justice. 13. Having failed to demonstrate substantial loss, and having failed to offer security for the due performance of a money Page 6 of 7
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HCCOMM MISC. E1267 OF 2020 decree involving funds held in a fiduciary capacity, the application collapses. 14. As to costs, the same ordinarily follow the event and lie at the discretion of this Court. The Costs are awarded to the successful Plaintiff/ Respondent. Determination 15. The Defendant’s application by way of a Notice of Motion dated 26th November, 2025 declined as follows: 1. The Defendant/Applicant’s application by way of a Notice of Motion dated 26th November, 2025 is HEREBY dismissed in its entirety, for lack of merit. 2. The costs of the application are awarded to the Plaintiff/Respondent. 16. It is so ordered. DATED, SIGNED AND DELIVERED AT MILIMANI THIS 28TH DAY OF JULY, 2026 NJOROGE BENJAMIN K. JUDGE In the presence of: Page 7 of 7
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HCCOMM MISC. E1267 OF 2020 N/A for the Plaintiff/Respondent. Mr. Musyoka for the Defendant/Respondent. Mr. John Paul - Court Assistant. Page 8 of 7
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