Gulf African Bank v Realtek (K) Ltd & 5 others (Commercial Case E101 of 2018) [2026] KEHC 8663 (KLR) (Commercial and Tax) (19 June 2026) (Ruling)

Gulf African Bank v Realtek (K) Ltd & 5 others (Commercial Case E101 of 2018) [2026] KEHC 8663 (KLR) (Commercial and Tax) (19 June 2026) (Ruling) Neutral citation: [2026] KEHC 8663 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Commercial Case E101 of 2018 JWW Mong'are, J June 19, 2026 Between Gulf African Bank Plaintiff and Realtek (K) Limited 1st Defendant Abriahman Mohammed Ahmed 2nd Defendant Fardowsa Mohamed Ibrahim 3rd Defendant Yunis Mohammed Omar 4th Defendant Nia Moja Business Solutions 5th Defendant Adawa Investments Company Limited 6th Defendant Ruling Introduction and Background 1.By the court’s ruling dated 6th March 2025, the Defendants’ attempt to set aside the consent entered between the parties and the subsequent consent judgment of Kshs.65,000,000.00/= was dismissed. The Defendants have evinced their intention to appeal this ruling and they have now filed the Notice of Motion dated 10th March 2025(erroneously dated 2024) seeking leave to appeal the said ruling, that the court deems their Notice of Appeal dated 7th March 2025 as properly filed, that there be a stay of execution of the decree and the proceedings herein pending the hearing and determination of the appeal. 2.The application is supported by grounds on its face and the supporting affidavit of the 1st Defendant’s CEO, Mohammed Yunis, sworn 10th March 2025. It is opposed by the Plaintiff through the Grounds of Opposition dated 30th September 2025. The parties have canvassed the application by way of written submissions which I have considered together with the pleadings and I will make relevant references to them in my analysis and determination below. Analysis and Determination 3.From the parties’ submissions, the court is being called to determine the following issues:i.Whether the Defendants’ advocates are properly on recordii.Whether the Defendants have made out a case for the reliefs sought in their application Propriety of the Defendants’ advocates on record 4.In the court’s ruling of 6th March 2025, it was found that the Defendants filed a Notice of Change of Advocates dated 30th May 2024 but they did not file any consent from their former advocates and they did not seek or obtain leave from the court to come on record. Therefore, the Defendants’ present advocates are improperly on record, and the application to set aside the consent judgment was procedurally defective and ought to have been struck out at that point. The Plaintiff contends that the present application is fatally defective for continued non-compliance with Order 9 Rule 9 of the Civil Procedure Rules as the Defendants’ present advocates are still not properly on record because no order of the court or consent has been obtained. 5.In their submissions, the Defendants have argued that the present application itself is the formal move to regularize their position and that the court should prioritize substantive justice over procedural technicalities under Article 159(2)(d) and sections 1A and 1B of the Civil Procedure Act. In the previous ruling, I stated that under Order 9 Rule 9 of the Rules, when there is a change of advocate after judgment has been entered, the new advocate must either obtain leave of the court or enter into a consent with the outgoing advocate and that non-compliance with these provisions is fatal to an application. The Defendants have filed the present application and they have still not complied with the said Rule as no order of the court or consent has been obtained. 6.I reject the Defendants’ position that this application seeks leave to appeal which is the correct way to regularize our position. Order 9 Rule 9 requires leave of the court for the advocates to come on record before filing any substantive application. They cannot file an application seeking leave to appeal and stay while still being improperly on record, and then ask the court to forgive the defect within that same application. I further reject the Defendant’s proposition that the court should apply the oxygen principle and avoid technicalities as in the previous ruling, the court found and held that Order 9 Rule 9 goes to jurisdiction and locus standi and is not a mere technicality and an advocate who is not properly on record has no legal standing to move the court. Whereas the Defendants are at liberty to pursue an appeal against this ruling, seeking leave to appeal does not cure the defect for this application. To be properly before the court for the application, the Defendants’ present advocates must first be properly on record. It therefore remains that the Defendants have failed to meet the mandatory requirements set out under Order 9 Rule 9 of the Rules, rendering the present application procedurally defective 7.In any event, even if I am to determine the merits of the application, the same will still fail the test for stay of execution and proceedings for a number of reasons. As submitted by the Defendants, the principles that guide the court in an application for stay of execution and proceedings pending an appeal are grounded in Order 42 Rule 6 (2) of the Rules. In order to succeed, the applicant must demonstrate substantial loss may result unless the order of stay is made. It must also demonstrate that the application has been brought without undue delay and lastly, the applicant must give such security as the court may order for the due performance of the decree or order as the case may be. These principles have buttressed by decisions of superior courts where it was added that the power to order stay of execution is discretionary and must be exercised in such a way that the appeal is not rendered nugatory and that this discretion is based on the facts and circumstances of each case (see Halai & Another v. Thornton & Turpin [1990] KECA 65 (KLR) and Butt v Rent Restriction Tribunal [1979] KECA 22 (KLR)] 8.The Defendants deposed that they are "willing to abide by stay conditions" set by the court but they offer no specific security. It is the court which determines the security upon ordering stay to ensure the due performance of the obligations by the applicant as to costs and to satisfy the decree and an applicant ought to depose that it is ready to provide security for the court to exercise discretion in its favour (see Focin Motorcycle Co. Limited v Ann Wambui Wangui & Stephen Kinyua Mugo [2018] KEHC 8358 (KLR)]. There cannot be a stay pending appeal without security being furnished and since the Defendants appear unwilling to offer the same, their quest for an order of stay is halted at this point. 9.On the Defendants suffering substantial loss, they ought to have shown that the Plaintiff is not a person of means, and payment of the decretal sum prior to the appeal would put the same beyond their reach. They relied on the Court of Appeal decision in Kenya Shell Limited v Benjamin Karuga Kibiru & anorther [1986] KECA 94 (KLR) where it was held that in money decrees, the ability of the respondent to repay is key. The Plaintiff has stated that it is a licensed bank capable of repaying any sum ordered by the court and this position has not been substantially disputed by the Defendants. Their argument that execution will cripple their business is a claim, but they provided no financial evidence such as audited accounts or bank statements to substantiate it and as stated, bare assertions are insufficient. 10.It should not be lost that the conditions that satisfy the court that an order of stay of execution under Order 42 Rule 6 of the Rules ought to be granted must be fulfilled conjunctively, meaning all three conditions must be met simultaneously and that failure to satisfy any one of the tenets stipulated in that Rule is fatal to the application (see Equity Bank Limited v Taiga Adams Company Limited [2006] KEHC 860 (KLR) and Morris Guchura Njage t/a Morris Njage & Company v Liza Catherine Wangari Mwangi [2021] KEHC 8939 (KLR)] 11.Thus, whereas the Defendants might have brought the application without undue delay, they have failed to demonstrate the substantial loss that they will suffer if the stay is not granted and that they are unwilling to provide such security as may be determined by court. In the foregoing, I find that the Defendants have not made out a case for the grant of an order of stay of execution of the court’s ruling pending their appeal before the Court of Appeal. Conclusion and Disposition 12.For the reasons stated above, I find that the Defendants’ application dated 10th March 2025 lacks merit and it is now dismissed in its entirety with costs being awarded to the Plaintiff. DATED SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 19TH DAY OF JUNE 2026 ............................................................................ J.W.W. MONGAREJUDGEIn The Presence OfMs. Mutonyi holding brief for Mr. Ogunde for the Plaintiff/Applicant.Mr. Omondi holding brief for Kimathi for 1st-5th Defendants and for Mr. Ikua for the 6th Respondent.Amos- Court Assistant