https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2076

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NYERI** **MISC. CIVIL APP. NO. E028 OF 2024** **JOSEPH MUHOHO GICHIMU T/A** **MUHOHO GICHIMU CO. ADVOCATES…………ADVOCATE/RESPONDENT** **VERSUS** **SINOHYDRO CORPORATION LIMITED……...1ST RESPONDENT/APPLICANT** **STECOL CORPORATION LIMITED……………………………2ND RESPONDENT** **MAMALO AUCTIONEERS…………………………………..INTERESTED PARTY** **RULING** 1. By an order issued on 12th February 2026, the Court allowed the Advocate/Respondent’s Notice of Motion dated 14th July 2025 and, to this end, entered judgment in the Advocate’s favour in the sum of Kshs. 123,330/=, in accordance with the Certificate of Costs issued on 2nd July 2025. 2. Following the entry of judgment, the 1st Respondent/Applicant filed the instant Notice of Motion dated 22nd April 2026 principally seeking an order staying execution and lifting the proclamation of attachment dated 20th April 2026 pending the hearing and determination of the application. 3. The instant application is anchored on the grounds appearing on its face and the Supporting Affidavit sworn on 22nd April 2026 by ***John Muthui Wangome***, who describes himself as the Manager of the 1st Respondent/Applicant. 4. Mr. Wangome deposes that the 1st Respondent/Applicant was served with a proclamation notice dated 20th April 2026 in execution of a decree issued by this Court on 14th April 2026. 5. He further avers that the 1st Respondent/Applicant had not been served with the proceedings in this matter and only became aware of the existence of the suit upon being served with the proclamation notice and warrants of attachment on 20th April 2026. 6. It is Mr. Wangome’s further deposition that the 1st Respondent/Applicant should be afforded an opportunity to be heard before any execution proceeds. 7. The Advocate/Respondent opposes the application through the Replying Affidavit sworn on 30th April 2026 by ***Joseph Muhoho Gichimu***. 8. Mr. Muhoho deposes that the Motion is frivolous, unmerited, and only aimed at denying him the fruits of his judgment. 9. He further contends that the Applicant merely seeks a blanket stay of execution without anchoring that prayer on any other substantive relief that would remain pending before the Court if the stay orders are granted. 10. Mr. Muhoho further posits that the Applicant has not sought to set aside the judgment validly entered by this Court. 11. He further avers that the affidavits of service filed in these proceedings are sufficient testimony that the Applicant was duly served with all court processes without fail. 12. Mr. Muhoho further contends that if the Applicant intended to challenge service, it ought to have sought a prayer to cross-examine the process server. He adds that, on his part, he was desirous of cross-examining both the deponent of the present application and ***Ms. Grace Kanyi***, who, according to him, occasionally received the court documents on behalf of the Applicant, acknowledged service, and endorsed her name on the return copies. **Submissions** 1. On 6th May 2026, the Court directed that the Notice of Motion be canvassed by way of written submissions. The Applicant submits that unless the orders sought are granted, the Interested Party will proceed with the intended sale of its attached property, thereby occasioning it irreparable harm that cannot adequately be compensated by an award of damages. The Applicant further submits that the inconvenience it would suffer is greater than that of the Advocate if the Interested Party proceeds with the sale of the immovable property. 2. On the other hand, the Advocate submits that the application for stay is filed in vacuo as it has not anticipated legal action that the applicant seeks after the stay is granted. 3. The Advocate further argues that the Applicant has not provided the substratum upon which the stay should be founded, adding that from the body of the application, the basis on which the stay is sought cannot be deduced. 4. It is further contended by the Advocate that the application for stay of execution is not a standalone application that one can simply ask the court to stop execution without determining whether they are challenging the judgment that led to the execution. 5. In further submission, the Advocate has submitted that since the matter was commenced, he has always presented proof of service of all court processes. 6. The Advocate further contends that the Applicant has not indicated whether they are challenging the costs by the Director Registrar, as it has simply asked the Court to grant a stay of execution without basing that prayer on any substantive intended legal action. 7. It is the Advocate’s position that the wording of ***Section 51(2) of the Advocates Act*** is to the effect that the certificate of costs by the Taxing Master is final regarding the amount due, provided it has not been set aside under the provisions of paragraph 11 of the Advocates Remuneration Order. In the same vein, the Advocate has submitted that the Applicant ought to have moved this Court under the said paragraph 11 to challenge or vary the assessment of costs by the Deputy Registrar through filing a Reference, even if out of time. **Analysis and Determination** 1. I have considered the instant Notice of Motion, the Replying Affidavit filed by the Advocate, together with the parties' respective submissions, and to my mind, the sole issue falling for determination by the Court is whether the said application is merited. 2. At the outset, it is worth noting that one of the principal reliefs sought by the Applicant is an order staying execution pending the hearing and determination of the present Motion. 3. It is notable that when the application first came before the Court on 23rd April 2026, a temporary stay of execution was granted pending further orders. That interim order has remained in force to date. Consequently, the prayer for stay of execution pending the hearing and determination of this application has, for all intents and purposes, been overtaken by events. More importantly, and as correctly observed by the Advocate, the instant Motion does not disclose the substantive legal step the Applicant intends to pursue once the order staying execution is granted. 4. More specifically, the Applicant has not sought any order setting aside or varying the orders made on 12th February 2026, has not filed a Reference under paragraph 11 of the Advocates Remuneration Order to challenge the Taxing Master's assessment, and has equally not indicated that it has preferred an appeal against those orders. 5. Indeed, the record does not disclose that any Reference was ever filed against the Taxing Master's Ruling delivered on 21st May 2025 in respect of the Advocate-Client Bill of Costs dated 7th October 2024. 6. Equally, the Applicant's prayer for an order lifting the proclamation of attachment dated 20th April 2026 pending the determination of this application has equally been overtaken by events. This is more so noting that the Motion does not disclose the substantive legal process the Applicant intends to pursue if the proclamation were to be lifted. 7. In light of the foregoing, it is apparent that the Motion has, in substance, been spent, leaving no substantive question for the Court's determination. 8. Be that as it may, the Court has considered the Applicant's contention, as deposed by Mr. Wangome, that it was never served with the proceedings giving rise to the order of 12th February 2026. 9. The record, however, tells a different story. In the Affidavit of Service sworn on 6th February 2026, ***Teobald Maina Kihia***, who describes himself as a licensed court process server, deposes that on 23rd January 2026, he personally served the Notice of Motion dated 14th July 2025 together with the hearing notice dated 12th January 2026 upon the Applicant's Human Resource Manager, ***Grace*** who is personally known to him and who acknowledged receipt of the documents. 10. The Advocate has further produced as an annexure to his Replying Affidavit a copy of the Notice of Motion dated 14th July 2025 bearing the name and signature of ***Grace Kanyi*** in acknowledgement of service. 11. Notably, upon being served with the Replying Affidavit, the Applicant did not file a Supplementary Affidavit to rebut the Advocate's averments regarding service of the Notice of Motion dated 14th July 2025, the determination of which culminated in the orders issued on 12th February 2026 that now form the basis of the execution proceedings. 12. In the absence of any evidence impeaching the affidavits of service or disputing the acknowledgment of receipt, the Court finds no basis for doubting that the Applicant was duly served with both the Notice of Motion dated 14th July 2025 and the hearing notice dated 12th January 2026. 13. The Applicant's assertion that it was unaware of these proceedings is therefore unsupported by the material on record and cannot be sustained. 14. From the record herein, it is evident that the Applicant, despite having notice of the proceedings, took no steps to participate in them and only approached the Court after execution had been initiated. 15. It is trite that equity aids the vigilant and not the indolent. The Applicant's conduct in these proceedings does not reflect the diligence expected of a litigant seeking the Court's discretionary intervention, and it would not be just for the Court to exercise its discretion in its favour. 16. In so finding, the Court is alive to the constitutional imperative that every party is entitled to a fair hearing before an adverse decision is made. In the present case, however, the Applicant was afforded that opportunity but failed to utilise it by neither responding to the Notice of Motion dated 14th July 2025 nor challenging the taxation through a Reference under paragraph 11 of the Advocates Remuneration Order. 17. For the foregoing reasons, the Court finds that the Notice of Motion dated 22nd April 2026 is devoid of merit and is hereby dismissed. To bring this matter to a close, each party shall bear its own costs. **DATED, SIGNED** and **DELIVERED** at **NYERI** this **16th** dayof **July** 2026. ……………………………… **STELLA RUTTO** **JUDGE** **In the presence of**: Ms. Mahugu for the 1st Respondent/Applicant No appearance for the Advocate/Respondent No appearance for the 2nd Respondent Ndati Court Assistant **ORDER** In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with **Order 21 Rule 1** of **the Civil Procedure Rules**, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court had been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of **Section 1B** of the **Civil Procedure Act (Chapter 21 of the Laws of Kenya)** which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes. **STELLA RUTTO** **JUDGE**