Darson Trading Ltd & 2 others v Leuqman Company Ltd & 2 others (Civil Appeal E248 of 2024) [2026] KEHC 8265 (KLR) (28 May 2026) (Ruling)

Darson Trading Ltd & 2 others v Leuqman Company Ltd & 2 others (Civil Appeal E248 of 2024) [2026] KEHC 8265 (KLR) (28 May 2026) (Ruling) Neutral citation: [2026] KEHC 8265 (KLR) Republic of Kenya In the High Court at Kisumu Civil Appeal E248 of 2024 JM Omido, J May 28, 2026 Between Darson Trading Ltd 1st Appellant Azan Motors Ltd 2nd Appellant Ayan Automobiles Ltd 3rd Appellant and Leuqman Company Ltd 1st Respondent Mamalo Auctioneers Ltd 2nd Respondent David Muya Kariuki 3rd Respondent Ruling A. The Notice Of Motion Dated 18Th September, 2025. 1.The Appellants’ notice of motion dated 27th November, 2024 is expressed to be brought under Sectiosn 1A, 1B, 3A and 63Q of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules and seeks the following orders:a.[Spent].b.[Spent].c.Pending the hearing and determination of this substantive Appeal herein there be an order of stay of execution of the ruling delivered on the 8th day of October, 2024 in Kisumu Magistrate’s Court Civil Suit No. E215 of 2024.d.That the Honorable court do order motor vehicle KDG 509V be preserved at the nearest Police station.e.Costs of this application be provided for. 2.The grounds upon which the application is premised are set out on their face as follows:1.The Appellants herein were sued in Kisumu Magistrate’s Court Civil Suit No. E217 of 2024 on the attachment of Motor vehicle registration KDG 509V by the 4th Respondent herein Mamalo Auctioneers by use of decree and warrants from Kangema Civil Suit No. E044 of 2023 in which suit the 5th Respondent herein sued the 3rd Appellant and which judgement was set aside by the Honourable Court vide a ruling delivered on the 21st August, 2024.2.That the 4th Respondent without notice attached motor vehicle registration KDG 509V purchased by the 1st Respondent herein through instalments vide a hire purchase agreement made on 23rd August, 2023 by paying a deposit of Ksh.800,000/- to Darson Trading Limited who had authority to sale on behalf of Ayan Automobiles Limited.3.That the said Auctioneers the 4th Defendant (sic) did not serve a notice as per the Auctioneers Rules No. 6 and 7 by way of a proclamation.4.That the said subject motor vehicle was not the one that caused the accident which brought about the suit at Kangema Civil Suit No. E044 of 2023 which the said accident was caused by motor vehicle KDG 214B owned by the 3rd Appellant herein who was not served with summons and who had sold the subject motor vehicle to one Joyce Wanjiru Ndung’u who is the Third Party in the Kangema Civil Suit No. E044 of 2023.5.That the Plaintiff 1st Respondent herein (sic) filed a similar suit at Vihiga Law Courts Suit No. E119 of 2024 which was never disclosed in the Kisumu Civil Suit No. E217 of 2024 as opposed to the Civil Procedure Rules in particular the verifying affidavit to confirm that there is other suit relating to the parties the subject matter Order 4 Rule 2 of the Civil Procedure Rules.6.Pending the hearing and determination of this application the Honourable court do order the preservation of motor vehicle KDG 509V in any nearest police station. B. The Supporting Affidavit. 3.The application is supported by the affidavit of Nicholus Ngoli Inyangala sworn on 27th November, 2024. 4.In his affidavit, the said deponent he is the Operations and Sales Manager of the Appellants, hence competent to swear the affidavit in support of the application for stay. He depones that the dispute herein arose from the attachment of motor vehicle registration number KDG 509 pursuant to warrants and a decree issued in Kangema Civil Suit No. E044 of 2023. 5.The deponent further avers that the said warrants were subsequently set aside by a ruling delivered on 21st August, 2024 by the Honourable Senior Resident Magistrate, and has annexed a copy of the said ruling. 6.The deponent states that the present suit filed at Kisumu is the third in a series of related proceedings, following an earlier suit at Vihiga Law Courts being MCCC No. E119 of 2024, which was dismissed in a ruling delivered on 17th May. 2024. He contends that the 1st Respondent has engaged in forum shopping in an attempt to obtain a favourable outcome, despite there being pending objection proceedings before the Kangema Court, which are awaiting determination. 7.The deponent further avers that the trial court delivered a ruling directing the Appellants to deposit a sum of Ksh.3,200,000/- within 30 days, prompting the filing of the present application for stay. It is his position that there is no lawful basis for compelling the Appellants to deposit the said sum, as they have been prejudiced by the actions of the auctioneer, being the 4th Respondent, who attached a motor vehicle that had already been sold to a third party unrelated to the Kangema judgement. 8.The deponent further alleges that the 4th and 5th Respondents have acted in concert to prejudice the Appellants by interfering with lawful contracts entered into with innocent purchasers. He states that the judgement giving rise to the warrants was set aside and directions issued for hearing at Kangema, yet the 4th and 5th Respondents have continued to pursue the subject motor vehicle through what he terms as extortionate conduct. 9.The deponent avers that the Appellants stand to suffer substantial loss unless stay orders are granted to allow the matter to be heard and determined on its merits. He contends that the striking out of the auctioneer and the decree holder from the proceedings will render the suit defective, as they are the parties who executed the warrants leading to the sale of the subject motor vehicle. He maintains that the 4th and 5th Respondents are central to the dispute, having executed the warrants, and that their removal from the suit is prejudicial to the Appellants. 10.The deponent further avers that recovery of the subject motor vehicle can only be effectively pursued with the participation of the said Respondents, yet the trial court removed them from the proceedings without assigning reasons. He reiterates that the 4th Respondent executed warrants that were later set aside by the Kangema Court, and is therefore a necessary party for the just determination of the dispute. 11.The deponent also faults the 4th Respondent for failing to disclose material particulars regarding the alleged auction sale of the motor vehicle, including the identity of the purchaser, the date and the circumstances of the auction. 12.Lastly, the deponent avers that the 1st Respondent has failed to demonstrate that the Appellants were responsible for the attachment of the motor vehicle, and that the continued exclusion of the 4th and 5th Respondents from the proceedings will occasion prejudice and hinder a fair and just determination of the case. C. Resistance To The Application. 13.It is evident from the record that the 1st Respondent filed a Notice of Change of Advocates dated 13th January 2025, by which it purported to substitute the firm of Akolo Wanyanga & Company Advocates with that of Otieno & Achieng’ Advocates. The 1st Respondent further filed a replying affidavit sworn on the same date by its director, Stephen Nanga Okwemba, in opposition to the Appellants’ application. 14.I further observe that the proceedings from which this appeal arises were concluded by judgement, and accordingly, the 1st Respondent was obligated to comply with Order 9 rule 9 of the Civil Procedure Rules prior to effecting any change of advocates, such leave of the court or consent of the outgoing advocate not having been demonstrated on record. 15.Order 9 Rule 9 provides in substance, that where there is a change of advocate after judgement has been entered, or where a party who was previously represented by an advocate wishes to act in person, such change shall not be effected without either leave of the court, or a consent filed between the outgoing advocate and the incoming advocate or the party acting in person. 16.In simpler terms, once a judgment has been delivered, a party cannot just switch lawyers on record or start acting in person on their own. They must either get permission from the court or file a formal consent showing the outgoing advocate agrees to the change. 17.It is now well settled that the requirements of Order 9 Rule 9 of the Civil Procedure Rules are couched in mandatory terms, and any non-compliance renders a notice of change of advocates filed after judgement incompetent and of no legal effect. 18.In the present case, the 1st Respondent neither obtained leave of the court nor filed a consent between the outgoing and incoming advocates prior to the purported change of representation. The Notice of Change of Advocates dated 13th January, 2025 is therefore fatally defective and is hereby struck out. 19.Consequently, any pleadings filed by an advocate not properly on record are equally incompetent and liable to be struck out. The replying affidavit sworn on 13th January, 2025 by Stephen Nanga Okwemba and filed pursuant to the said defective notice of change is therefore improperly on record and is hereby struck out in its entirety. 20.The Court draws support from the decision in Kipkirui v Rotich & Another [2019] eKLR,where it was held that failure to comply with the mandatory provisions of Order 9 Rule 9 renders any subsequent filings by such counsel a nullity and liable to be struck out, as well as Gitau v Githinji & Another [2016] eKLR, where the court similarly struck out proceedings filed by advocates not properly on record for want of compliance with the said rule. 21.The 2nd Respondent filed a document that is irregular in form, consisting partly of grounds of opposition on the first page and part of the second page, and thereafter, from the middle of the second page, purporting to constitute a replying affidavit sworn by Nicasio Macharia on 16th December 2024. 22.The Court has carefully considered the said document and notes that it is procedurally and substantively defective, in that it is a hybrid pleading purporting to combine grounds of opposition and a replying affidavit within a single instrument. The first portion thereof is styled as grounds of opposition, while the latter portion is framed as an affidavit purportedly sworn by Nicasio Macharia on 16th December, 2024. Such a conflation of distinct procedural pleadings is not contemplated under the Civil Procedure Rules. 23.It is trite that grounds of opposition and replying affidavits serve distinct legal purposes and are governed by separate procedural requirements, and a party is required to distinctly elect one or both modes of response rather than improperly blending both in a single document. A combination of the two is unknown in law and renders the document incompetent. Accordingly, the said document is hereby struck out in its entirety. D. Appellant’s Submissions 24.In their submissions, the Appellants state that this appeal is directed against the ruling of the trial court at Kisumu, which ordered it to deposit a sum of Ksh.3,230,000/- within 30 days in respect of motor vehicle registration number KDG 509, which had been the subject of attachment. 25.It is contended that the said attachment arose from a decree issued in Kangema Civil Suit No. E044 of 2023, which, however, was subsequently set aside by a ruling delivered on 21st August 2024, which also granted the Appellant leave to file a defence upon payment of throwaway costs of Ksh.5,000/-, which was duly complied with. 26.The Appellants further submit that following the said ruling, the 3rd Respondent lodged an appeal in Murang’a HCCC No. E88 of 2024 and obtained an order staying proceedings in the Kangema case, pending determination of that appeal. 27.It is the Appellants’ position that the Respondents have alleged the existence of a consent but have failed to place any such consent before the Court, rendering the allegation unsubstantiated and misleading. 28.The Appellants maintain that any purported consent could not have been validly entered into without its participation, as the subject motor vehicle is registered in its name and directly affected by the proceedings. 29.It is further argued that the decree and judgement previously relied upon to justify the attachment of motor vehicle KDG 509 had already been set aside by a court of competent jurisdiction, and therefore there was no lawful basis for its continued attachment or sale. 30.The Appellants assert that the order directing the deposit Ksh.3,230,000/- ought to be set aside, and the suit dismissed on the basis that the attachment was unlawful and founded on a judgement that had been nullified after full hearing of the parties. 31.It is further submitted that the Respondents have engaged in forum shopping, having previously instituted proceedings at Vihiga Law Courts which were dismissed, and thereafter instituting similar proceedings in Kisumu in an attempt to obtain a favourable outcome. 32.The Appellants contend the Respondents’ position is unsupported by evidence or law, and is primarily anchored on an alleged consent that has neither been produced nor proved before the Court. E. Issues For Determination, Analysis And Findings. 33.I have carefully considered the notice of motion dated 27th November, 2024, the supporting affidavit, the Appellants’ submissions and the limited material placed before me. From the outset, the Court is constrained to observe that the application is regrettably lacking in clarity, coherence and precision as to the exact nature of the reliefs sought and the evidential foundation upon which it is based. 34.The first issue for determination is whether the application discloses a clear, competent and properly supported basis upon which the Court can grant the orders sought. In this regard, the Court finds that although the application purports to seek orders of stay of execution and preservation of motor vehicle registration number KDG 509V, the supporting affidavit does not adequately or coherently set out the factual basis for those prayers. 35.The affidavit is generally couched in broad and unparticularized averments, some of which appear to have been expanded upon in submissions rather than in evidence. It is trite law that submissions cannot supplement or cure deficiencies in affidavit evidence, and the Court is bound to determine the application solely on the basis of sworn evidence properly placed before it. 36.The Court further notes with concern that the ruling or order sought to be stayed has not been annexed to the application. This omission is fundamental. A court cannot be asked to stay execution of an order whose terms, contents and legal effect have not been placed before it. 37.Without the impugned ruling and/or order, the Court is unable to verify its existence, appreciate its operative effect or assess whether the orders sought in the present application are properly directed at it. The Court cannot act in a vacuum or on the basis of bare assertions unsupported by documentary evidence. 38.The Court further observes that even the well-established conditions for the grant of stay of execution pending appeal have not been specifically addressed in the supporting affidavit. The affidavit does not clearly demonstrate, through cogent factual averments, issues such as substantial loss, the absence of unreasonable delay or the provision of security for the due performance of the decree as may ultimately be binding. Instead, the affidavit is largely general in nature and does not engage with the legal threshold required under Order 42 Rule 6 of the Civil Procedure Rules in a manner that would enable the Court to properly exercise its discretion. 39.The second issue relates to the alleged nexus between Kisumu Civil Suit No. E217 of 2024, Vihiga Law Courts Civil Suit No. E119 of 2024 and Kangema Civil Suit No. E044 of 2023. The Appellants have sought to persuade the Court that these proceedings are interconnected and that the execution complained of arises from a decree that has since been set aside in the Kangema matter. However, the Court notes that no sufficient documentary evidence has been placed before it to clearly demonstrate the relationship between these proceedings in a manner that clearly ties them to the execution process complained of in the Kisumu case. The Court is therefore left to infer the alleged nexus, which is not the function of a court seized of a contested application, particularly on appeal. 40.The third issue is whether the Appellants have placed sufficient material before the Court to enable it to exercise its discretion in favour of granting stay of execution pending appeal. The supporting affidavit, as already found, is deficient in material particulars. The Court is therefore faced with an application that is substantively and procedurally unclear. The absence of the impugned ruling, the failure to demonstrate the alleged interconnection between multiple suits collectively render the application incapable of proper adjudication. A court of law cannot base its discretionary jurisdiction on speculation, assumptions or incomplete evidentiary material. 41.In the final analysis, the Court finds that the Appellants have failed to place before it sufficient, clear and cogent material upon which the Court can exercise its discretion in favour of granting the orders sought. The application is therefore unmeritorious and incapable of being granted. I proceed to dismiss it. 42.Notwithstanding the foregoing, the Court has also taken into account the manner in which the application was opposed. The Respondents’ purported responses were themselves marked by procedural deficiencies, which I have addressed above. In the circumstances, and bearing in mind the overall inadequacy of material placed before the Court by both sides, the Court is not persuaded that an award of costs is warranted. Accordingly, there shall be no order as to costs. DELIVERED (VIRTUALLY), DATED & SIGNED THIS 28TH DAY OF MAY, 2026.JOE M. OMIDO.JUDGEFor The Appellants: Ms. Mwangi For Mr. Osoro.For The 1St Respondent: No Appearance.For The 2Nd & 3Rd Respondents: Mr. Kibe.Court Assistants: Mr. Ngoge & Mr. Juma.Court: Mention for admission of the appeal and further directions on 16th July, 2026.