https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/661

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATE'S COURT AT BUNGOMA** **COMMERCIAL CASE NO. E002 OF 2025** **JOSEPH ANANGWE…….………………………..……………PLAINTIFF/RESPONDENT** **VERSUS** **VICTOR WAFULA NYONGESA………………..…………......DEFENDANT/APPLICANT** **RULING** 1. The Defendant/Applicant filed a Notice of Motion under a Certificate of Urgency dated 29th May 2026, premised on section 1A, 1B, and 3A of the Civil Procedure Act as well as Order 42 rule 6 of the Civil Procedure Rules, seeking the following orders:- 2. *Spent* 3. *Pending the hearing and determination of the Appeal, there be a stay of execution of the judgment, decree and all consequential orders issued and delivered herein on 30th April 2026* 4. *In the alternative and without prejudice to prayer 2 above, pending the hearing and determination of the Appeal,* *motor vehicle registration number KAX 046 K, Engine Number BJ493Q612934 and Chassis Number LCR1B41E96G01366 shall remain preserved and in the custody and possession of the Appellant, and neither party shall sell, transfer, charge, alienate, dispose of, encumber or otherwise deal with the said motor vehicle in any manner whatsoever* 5. *The costs of this Application be provided for* 6. The instant Application was premised on the grounds, on the face of it, which grounds were reiterated in the Defendant/Applicant’s Supporting Affidavit sworn on 08th June 2026. 7. The gist of the instant Application is that the Defendant/Applicant has appealed against the judgment and the decree herein vide Bungoma High Court Civil Appeal No. E082 of 2026; hence the need to preserve motor vehicle registration number KAX 046 K, Engine Number BJ493Q612934 and Chassis Number LCR1B41E96G01366 (“the suit motor vehicle”) so as not to render the appeal nugatory. 8. The Defendant/Applicant further averred that the Plaintiff/Respondent will not suffer any prejudice incapable of compensation by costs if the orders sought are granted. 9. The Plaintiff/Respondent opposed the instant Application through Grounds of Opposition dated 01st August 2026. He characterized the said Application as fatally defective and incompetent by dint of the Defendant/Applicant’s counsel’s failure to comply with the provisions of Order 9 Rule 9 of the Civil Procedure Rules. 10. Whereas the parties herein took directions that the instant Application be canvassed by way of written submissions, only the Defendant/Applicant filed written submissions reiterating his averments in the instant Application summarized above. **ANALYSIS AND DETERMINATION** 1. This court has carefully considered the instant Application in its entirety, the Grounds of Opposition and the written submissions filed as well as the authorities relied upon. 2. The Defendant/Applicant is seeking an order for stay of execution pending appeal. **Order 42 rule 6(1) and (2) of the Civil Procedure Rules** provides as follows on this issue: *“(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 that the Application has been made without unreasonable delay; and* *(b) 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.”* 1. In **Halai & another v Thornton & Turpin (1963) Ltd [1990] KECA 65 (KLR),** the Court of Appeal stated that a court’s power to grant a stay pending appeal under Order 41 rule 6 of the Civil Procedure Rules is fettered by three conditions, namely: the establishment of a sufficient cause, the satisfaction of substantial loss, and the furnishing of security. Further, the Application must be made without unreasonable delay. 2. The principles in the Halai case (supra) were also restated in **Rono v Rotich & 2 others (Environment and Land Case 56 of 2020) [2026] KEELC 3096 (KLR).** 3. The Plaintiff/Respondent’s sole opposition to the prayers sought in the instant Application is that the instant Application is not properly before this court for non-compliance with the provisions of Order 9 Rule 9 of the Civil Procedure Rules. 4. Flowing from the above, this court is of the considered view that the issues that commend to this court for determination are: 5. *Whether the instant Application is properly before this court* 6. *Whether substantial loss may result to the Applicant unless the order is made* 7. *Whether the Application has been made without unreasonable delay* 8. *Whether the Applicant has offered security for the due performance of the decree* **Whether the instant Application is properly before this court** 1. The Defendant/Applicant took the position that the instant Application was not properly before this court since the firm of BS Advocates LLP neither sought leave of this court nor filed a consent executed by Millimo P.M & Associates before coming on record for the Defendant post judgment as demanded by Order 9 Rule 9 of the Civil Procedure Rules. 2. Order 9 Rule 9 of the Civil Procedure Rules provides:- *“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:-* *i. Upon an application with notice to all the parties; or* *ii. 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.”* 1. The provisions of Order 9 Rule 9 of the Civil Procedure Rules reproduced above are express that a counsel coming on record for a party post judgment can only come on record for the party changing an advocate where such a counsel seeks leave of the court or files a consent executed between him and the outgoing counsel. 2. The firm of BS Advocates LLP neither sought leave of this court to come on record for the Defendant/Applicant post judgment nor filed a consent executed between them and the Defendant/Applicant’s outgoing advocate. Therefore, it is not in dispute that the firm of BS Advocates LLP has not complied with the express provisions of Order 9 Rule 9 of the Civil Procedure Rules. 3. The Plaintiff/Respondent characterized the contravention of Order 9 Rule 9 of the Civil Procedure Rules as fatal to the instant Applicant. The Defendant/Applicant did not submit on this issue. 4. The High Court judges hold divergent opinions on the consequence of non-compliance with the provisions of Order 9 Rule 9 of the Civil Procedure Rules. For instance, in **Ali v Dika & 2 others (Environment & Land Case E002 of 2022) [2025] KEELC 5003 (KLR)** Mboya J held as follows: *“15. To this end, it is apposite to take cognizance of the peremptory provisions of Order 9 Rule 10 of the Civil Procedure Rules, 2010….18. In the absence of leave being granted in favour of the incoming advocate, there is no gainsaying that the said advocates cannot therefore be seized of the requisite locus standi to mount, maintain and or prosecute the application dated 24th April 2025. Quite clearly, the application under reference is premature, incompetent and stillborn.”* 1. On the other hand, Muchemi J in **Together as One Micro Investments & another v Kinuthia t/a Immediate Auctioneers (Civil Appeal E256 of 2025) [2026] KEHC 6201 (KLR)** rendered herself thus on this issue: *“27.This was discussed in the Court of Appeal in the case of Tobias M. Wafubwa vs Ben Butali [2017] eKLR where it was held that:-* *“We would go further to add that, provided that where the failure to comply with Rule 9 did not undermine the jurisdiction of the court, or affect the core of the dispute in question, or prejudice either of the parties in any way as to lead to a miscarriage of justice, then Article 159 of the Constitution and the overriding principles could be called upon to aid the court to dispense substantive justice through just, efficient and timely disposal of proceedings.”* *28.A similar approach was invoked in the case of Boniface Kiragu Waweru vs James K. Mulinge [2015] eKLR where in addressing the issue of non-compliance with Order 9 Rule 9 this Court observed thus:* *“All in all we are not persuaded that non-compliance with Order III Rule 9A of the Civil Procedure Rules was meant to make the following proceedings incompetent or a nullity efficacious as the provision was meant to be. Indeed all times, the set procedures ought to be followed or complied with. However, we find that non-compliance, in the present matter, did not go to the root of the proceedings. The non-compliance we may say was procedural and not fundamental. It did not cause prejudice to the appellant at all…”* *In the instant case, the learned judge took the view that, the issue being one of failure to comply with Rule 9 was a procedural lapse that did not go to the root of the appeal and duly invoked the directions of Article 159 of the Constitution in dismissing the appellant’s application…However, non-compliance with Order 9 Rule 9 of the Civil Procedure Rules is not fatal but a venial omission which would be cured under Article 159(2)(d) of the Constitution and the oxygen principle. But of course, that is a matter for discretion of the court which should be exercised on the principles enunciated by the Court of Appeal in the Tobias Case.* *29.From the above decisions, it is evident that non-compliance with Order 9 Rule 9 is not fatal because the provision is merely procedural and as such the procedural flaw is curable under Article 159(2)(d) of the Constitution of Kenya, of which obligates the court to dispense justice without undue regard to procedural technicalities.”* 1. The law in this jurisdiction is that where there are two conflicting High Court decisions on an issue, the magistrate court has the leeway to choose the school of thought it subscribes to regarding an issue where there is no unanimity or consensus by the High Court on that particular issue. 2. This court subscribes to the school of thought espoused by Muchemi J in the Together as One Micro Investments case (supra) on the consequence of non-compliance with the provisions of Order 9 Rule 9 of the Civil Procedure Rules. 3. The position taken by this court on this issue is informed by the mischief the provisions of Order 9 Rule 9 of the Civil Procedure Rules sought to cure. Those provisions sought to protect advocates from cunning clients who change advocates without settling fees owed to their former or outgoing counsel. If non-compliance with those provisions was meant to render any pleadings filed by a counsel in contravention of those provisions a nullity, nothing could have stopped the legislature from expressly stating so. 4. In any event, Muchemi J’s decision above on this issue was guided by the holding in **Boniface Kiragu Waweru v James K. Mulinge & another [2015] KECA 657 (KLR)** where the Court of Appeal expressly held that non-compliance with Order 9 Rule 9 of the Civil Procedure Rules was a curable procedural technicality. 5. Given the Court of Appeal’s holding in the Boniface Kiragu Waweru case (supra) **regarding** this issue and going by the doctrine of stare decisis, all High Court decisions regarding this issue that depart from the said holding by the Court of Appeal on the same issue are not good law, thus not binding on this court. 6. It is against this backdrop that this court finds that the instant Application is properly before this court despite contravention of Order 9 Rule 9 of the Civil Procedure Rules by the Defendant/Applicant’s counsel. **Whether substantial loss may result to the Applicant unless the order is made** 1. In an Application for stay, the Court must consider the overriding objective of the Civil Procedure Act and balance the interests of the parties to the suit. The overriding objective aims, inter alia, to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act. 2. It is well settled in law that where the Applicant intends to exercise its undoubted right of appeal, and in the event it was eventually to succeed, it should not be faced with a situation in which it would find itself unable to get back its money or the suit property. In **James Wangalwa & Another v. Agnes Naliaka Cheseto Misc. App. No. 42 of 2011 (2012) eKLR**, Gikonyo J defined substantial loss as what has to be prevented by preserving the status quo because such loss would render the appeal nugatory. 3. This court agrees with the Defendant/Applicant that if the order of stay sought is not granted, execution will ensue, leading to the Defendant/Applicant losing the suit motor vehicle and its logbook to the Plaintiff/Applicant as well as the general damages of Kshs. 100,000/= awarded to the Plaintiff/Respondent. 4. Such a consequence will without doubt cause the Defendant/Applicant substantial loss should his intended appeal succeed. The intended appeal will also be rendered nugatory. 5. In the circumstances, this court is persuaded that the Defendant/Applicant will suffer substantial loss unless the order of stay sought is made. **Whether the Application has been made without unreasonable delay** 1. The judgment sought to be stayed was delivered on 30th April 2026. The instant Application was filed on 11th June 2026. That is nearly a month or so from the date the judgment appealed from was delivered. It is the view of this court that the time difference is reasonable. Therefore, this court holds and finds that the Defendant/Applicant has made the instant Application without unreasonable delay. **Whether the Applicant has offered security for the due performance of the decree** 1. The Defendant/Applicant has expressed his willingness to abide by any such conditions as the court may grant upon this court granting him the stay of execution pending appeal sought. He has also offered to provide security for the due performance of the decree herein. 2. In **Michael Ntouthi Mitheu v Abraham Kivondo Musau [2021] eKLR,** Odunga J stated interalia that the Respondent who has a decree in his favour should not, if the Applicant were eventually to be unsuccessful in its intended appeal, find it difficult or impossible to realize the decree. 3. This is the cornerstone of the requirement for security, and it is trite that once the security provided is adequate, its form is a matter of discretion of the Court. 4. Reiterating the need for the Applicant to demonstrate that he has offered security for the due performance of the decree, Kuloba, J in **Machira T/A Machira & Co Advocates vs. East African Standard (No 2) [2002] KLR 63** stated thus: *“to be obsessed with the protection of an appellant or intending appellant in total disregard or flitting mention of the so far successful opposite party is to flirt with one party as crocodile tears are shed for the other, contrary to sound principle for the exercise of a judicial discretion. The ordinary principle is that a successful party is entitled to the fruits of his judgement or of any decision of the court giving him success at any stage. That is trite knowledge and is one of the fundamental procedural values which is acknowledged and normally must be put into effect by the way Applications for stay of further proceedings or execution, pending appeal are handled. In the Application of that ordinary principle, the court must have its sight firmly fixed on upholding the overriding objective of the rules of procedure for handling civil cases in courts, which is to do justice in accordance with the law and to prevent abuse of the process of the court.”* 1. Guided by the authorities above, it follows that the security to be provided by the Defendant/Applicant envisaged under Order 42 Rule 6 of the Civil Procedure Rules must be one which will be sufficient to settle the entire decree as will be payable at the time the appeal is lost. Therefore, the ultimate decree envisaged under Order 42 Rule 6 (2) (b) of the Civil Procedure Rules includes costs and interest on the judgment sum. 2. The Respondents stated in his submissions that the Applicant should not be granted the order he seeks unless the Applicant deposits the judgment monies plus costs and interest in a joint account of the two advocates of the parties within thirty (30) days from the date of this court’s ruling. 3. This court is of the considered view that the Defendant/Applicant has fulfilled this condition by offering to comply with any conditions as to security that this court may deem fit to impose. **DETERMINATION** 1. For the reasons above and in order not to render the Defendant/Applicant’s appeal nugatory while at the same time securing the interests of the successful Plaintiff/Respondent, this court allows the instant Application in the following terms: 2. *The execution of the judgment, decree and all consequential orders issued and delivered herein on 30th April 2026 is stayed pending the hearing and determination of Bungoma High Court Civil Appeal No. E082 of 2026* 3. *Motor vehicle registration number KAX 046 K, Engine Number BJ493Q612934 and Chassis Number LCR1B41E96G01366 shall remain preserved and in the custody and possession of the Defendant/Applicant, and neither party shall sell, transfer, charge, alienate, dispose of, encumber or otherwise deal with the said motor vehicle in any manner whatsoever pending the hearing and determination of* *Bungoma High Court Civil Appeal No. E082 of 2026* 4. *That the Defendant/Applicant to deposit the suit motor vehicle’s original logbook in this court within fourteen (14) days of today* 5. *That the Defendant/Applicant to deposit a sum of Kshs. 500,000/= being the value of the suit motor vehicle and the general damages awarded to the Plaintiff/Respondent plus any accrued interest on the general damages in a joint interest-earning account in the names of counsel for both parties within fourteen (14) days of today* 6. *In the event the Defendant/Applicant fails to meet the conditions in (c) and (d) above within the prescribed timelines, the instant Application shall be deemed to have been dismissed with costs and the Plaintiff/Respondent will be at liberty to execute.* 7. *The costs of the instant Application to abide the outcome of Bungoma High Court Civil Appeal No. E082 of 2026* 8. It is so ordered. **Ruling read, signed and delivered in open Court at Bungoma this 11th day of August 2026.** **T. O. OMONO** **SENIOR RESIDENT MAGISTRATE** **In the presence of:** Ms. Nekesa h/b for Wasilwa for the Defendant/Applicant Plaintiff/Respondent C/A; Mr. Rioba