https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4749

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT MILIMANI LAW COURTS, NAIROBI** **ELC MISC APPLICATION N0. 131 OF 2019** **ANTHONY BURUGU & CO ADVOCATES……….………...APPLICANT/RESPONDENT** **-VERSUS-** **ELECTRO WATTS LIMITED…………………….……………RESPONDENT/APPLICANT** **RULING** **Introduction** 1. The Application before this court is the notice of motion application dated 12th May 2026 seeking the following orders; 2. **Spent** 3. **THAT** pending the hearing and determination of this application the honorable court be pleased to order a stay of execution of the decree issued on the 25th March 2026. 4. **THAT** the honourable court does make a finding that the Respondent has paid all the legal fees due to the Applicant. 5. **THAT** the honourable court be pleased to order the Applicant to release the sum of Ksh.3, 681,358.00 to the Respondent 6. **THAT** the honourable court be pleased to issue any other order in the interest of Justice. 7. Costs of the application. 8. The application was premised on grounds as in the supporting affidavit sworn by Steve Elkington. He deponed that the Applicant had represented the Respondent in a land sale transaction over LR 209/12817 where the Applicant held the deposit in sum of Ksh.5,700,000 and out of the same utilized Ksh.2,200,000.00 failing to account for the balance. 9. That the Respondent had written a letter requesting for legal fees in the sum of Ksh.5,777,661.10/= which sums the Respondent indicates to have paid and that the Applicant is actually in excess in the sum of Ksh.3,681,358.00/= that they have not released to the Respondent. He deponed that the Applicant can therefore not seek proclamation of the Respondent’s property yet they are holding monies that they have not accounted for hence this application to ask the court to order the release of the monies held by the Applicant. 1. The Respondent in opposition herein filed a replying affidavit sworn on the 2nd June 2026 by Anthony Burugu. He deponed that the firm had represented the Applicant in another suit High Court at Nairobi (Commercial and Tax Division) in HCCC No. 98 of 2018 suit with Consolidated bank where the suit property herein had been charged to it. That indeed the Applicant held the sum of Ksh.3,500,000/= as alluded by the Respondent but what it fails to disclose is that at the finalization of the above matter, the costs were to be awarded to the bank for it to discharge the property. That the Respondent caused for the Applicant to open joint interest account with Gumbo advocates where the amounts held as entered above were deposited as security of costs and with the knowledge of the Respondent. He deponed the costs of the high court matter to the bank was taxed at a Kshs.1,248, 893.50 which monies were deducted from the joint account and left with a balance of Ksh.2,251,106.50 which balance on agreement of the parties was utilized towards the settlement of the Applicant’s fees for representing it in the suit against the Bank and as such the figure the Respondent claims the Applicant has not accounted for does in reality not exists as it was all utilized. 1. The Advocates/Applicant further deponed that they filed several certificates that amounted to the tune of Ksh.7,571,350.6/= and that pursuant to the consent dated 12th April 2019 in the high court matter, the Respondent paid Kshs.3,777, 436.95/= and a further sum of Kshs.2,180. 583.00/= making a total of Kshs.5,958,019.95. 21. That deducting the sum received from the total due of Kshs.7,571,350.6 /=leaves an outstanding sum of Kshs.1,613,330.65/= which the Respondents are yet to pay. 2. He further deponed that the certificates as stated above did not capture the matter it had represented the Applicant in with the bank as the same had been settled. That this instant matter formed part of the certificate filed and was taxed at Ksh.934,887.50 that is owed by the Respondent. He deponed that when the enforcement of the Certificate of Taxation as a decree of this court dated 27th January 2026 was served on the Respondent’s advocates, they did not oppose the same and cannot seek to oppose now as it is an attempt to deny the advocate of the fruits of their judgement. 3. The court directed the application to be canvassed by way of written submissions with the Applicant/Respondent filing submissions dated 4th June 2026 while the advocates Respondent filed submission dated 8th July 2026. Applicant/Respondent’s submissions 1. The Respondent relied on the provisions of **Order 22 Rules 14 and 15 of the Civil Procedure Rules** that highlighted the issue of a set off where the sums owed by a person to a creditor are reduced by the sum the creditor owes to that person. It was their submission that advocate had misled the court in his calculations in terms of taxation in HCCOMM Misc application E269 of 2020.That getting the right figures then would not justify the figure in the proclamation Notice or as set out in the replying affidavit after an offset has been undertaken. That at the end of the set off it is the advocate/Respondent who owes the Applicant in the sum of Ksh.2,509,427.90/= Respondent’s submissions 1. Counsel argued that the Applicant had never raised the issue of the funds owed to it during the taxation of the advocate client bill of costs and having allowed the taxation proceedings to continue to conclusion can now not purport to reopen and relitigate on the same issue and they should be allowed to enjoy the fruits of judgement of 25th March 2026 relying in the case of **Machira t/a Machira & Co Advocates versus East African Standard [2002] KEHC 1167 (KLR).** 2. He further argued that the Respondent had given an account of the sums that had been held by them on behalf of the Applicant and the argument raised that they owed the Applicant is not grounded on truth. **Analysis and determination** 1. The Application before this court is seeking for stay of execution pending hearing and determination of the application and not an appeal however the court has the discretion to issue stay orders where sufficient cause has been shown relying on the principles as in **Order 42 Rule 6(2) of the Civil Procedure Rules** which provided. No order for stay of execution shall be made under subrule (1) unless— 1. 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 2. 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. 9. 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 42 rule 6 of the Civil Procedure Rules** is fettered by three conditions namely, establishment of a sufficient cause, satisfaction of substantial loss and the furnishing of security. Further the application must be made without unreasonable delay. To the foregoing I would add that the stay may only be granted for sufficient cause and that the Court in deciding whether or not to grant the stay and that in light of the overriding objective stipulated in **Sections 1A and 1B of the Civil Procedure Act**, the Court is no longer limited to the foregoing provisions. The courts are now enjoined to give effect to the overriding objective in the exercise of its powers under the **Civil Procedure Act** or in the interpretation of any of its provisions. According to **Section 1A(2) of the Civil Procedure Act** “the Court shall, in the exercise of its powers under this Act or the interpretation of any of its provisions, seek to give effect to the overriding objective” while under section 1B some of the aims of the said objective are; the just determination of the proceedings; the efficient disposal of the business of the Court; the efficient use of the available judicial and administrative resources; and the timely disposal of the proceedings, and all other proceedings in the Court, at a cost affordable by the respective parties. 1. It follows therefore that, in order to succeed in an application for stay of execution or proceedings pending appeal, an Applicant must demonstrate; (a)That the application has been brought without undue delay (b)That substantial loss may result unless the order of stay is issued, and (c)The Applicant must give security for the due performance of any decree or order that may ultimately be found to be binding on the Applicant 1. The Respondent/Applicant has indicated that the goods attached in the proclamation notice are used by the Applicant to carry its business operations and should they be attached and sold the business operations of the Respondent will be crippled. 2. It is now settled law that execution of a lawful given decree does not automatically amount to substantial loss. A successful litigant is entitled to enjoy the fruits of his judgment. This principle was aptly stated in **Machira T/A Machira & Co. Advocates Vs East African Standard (No.2) [2002] KLR 63**, where the court observed that:-“A successful party is entitled to the fruits of his judgment and should not be deprived of the same without just cause. “However, each case must be determined on its own individual circumstances. The court must balance the right of the successful litigant to enjoy the fruits of judgment against the equally important right of an unsuccessful litigant to pursue an appeal. 3. This was so rightfully quoted in the case of **RWW Vs EKW [2019] eKLR**, where the court stated that “The purpose of an application for stay of execution pending appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal, if successful, is not rendered nugatory.” 4. I have considered the parties evidence before this court. The Applicant has demonstrated that execution proceedings have been initiated through auctioneers and that attachment of movable assets is imminent. If attachment and sale proceedS before the intended appeal is heard, recovery of such assets may prove difficult or impossible. In my view, the possibility of sale by public auction of productive farming machinery and equipment before the appellate process is exhausted constitutes a sufficient basis upon which this court may find that substantial loss has been demonstrated. The Supreme Court in **Gatirau Peter Munya Vs Dickson Mwenda Kithinji & 2 Others [2014] eKLR** observed that preservation orders are intended to safeguard the substratum of litigation pending appellate proceedings. 5. Consequently, I am persuaded that the Applicant has established the likelihood of substantial loss if stay is denied. 6. On whether the application was filed without unreasonable delay. The decree the Applicant seeks to stay was issued on 25th March 2026 while the present application was filed on 13th May 2026.I hold the view that the delay is not inordinate. 7. Having found that the application was filed promptly, that substantial loss has been demonstrated and that appropriate security can be ordered at the discretion of this court, I am satisfied that sufficient cause exists to warrant preservation of the status quo pending any intended appeal. In balancing the competing rights of both parties, I am persuaded that the ends of justice would be better served by granting a conditional stay rather than allowing immediate execution. 1. Consequently, the Notice of Motion dated 12th May 2026 is hereby allowed on the following terms: - 2. There shall be a stay of execution of the ruling, and all consequential orders arising from the ruling delivered on 25th May 2025 pending the hearing and determination of an intended appeal. 3. The stay granted herein is conditional upon the Applicant depositing the entire decretal sum and taxed costs, if any, in an interest earning joint account in the names of the parties’ advocates within forty-five days from the date hereof. 1. In default of compliance with order (ii) above within the stipulated period, the stay granted herein shall automatically lapse without further order of the court. 2. Costs of the application shall abide the outcome of the intended appeal. **It is so ordered.** **DATED**, **SIGNED** and **DELIVERED** via e-mail at **NAIROBI** on this **15th** day of **July 2026.** **MOHAMMED N. KULLOW** **JUDGE**