[2022] KEHC 1521 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MISC. APPLICATION NO. E588 OF 2021

KENYA SCHOOL OF LAW......................................................APPLICANT

VERSUS

JOHN KIBEGWA

KIBORE LUCIA WANGUI

NELLY GATIE JARA

MURABULA EMILY AKWANYI

JACOB ODANGA ODHIAMBO

MBOTE NELLY MWIKALI

GELATIUS MWANGANGI MWENDWA

OBOTE MICHAEL SAVAI

BRENDA KARIMI...........................................................RESPONDENTS

RULING

1) The subject matter of this ruling is the motion dated 30th November 2021 in which the appellant sought for an order for stay of execution of the judgment of the Legal Education Appeals Tribunal delivered on 15th October 2021 pending the hearing and determination of H.C.C.A no E692/2021.

2) The motion is supported by two affidavits sworn by Fredrick Muhia. When served with the aforesaid motion, the respondents filed the replying affidavit sworn by Kibore Lucia Wangui to oppose the application. Learned counsels appearing in this matter made oral submissions.

3) I have considered the grounds stated on the face of the motion plus the facts deponed in the rival affidavits. I have further considered the rival oral submissions made by learned counsels. It is the submission of the appellant that it has filed an appeal against the decision of the Legal Education Appeals Tribunal which appeal raises serious questions of law and facts which need the determination of this court.

4) The appellant averred that the respondents served the appellant with the decree indicating their intention to enforce the same. It is the further submission of the appellant that unless the order for stay of execution is given the appeal will be rendered nugatory and as overtaken by events in that the respondents will have taken steps to have the decree enforced against it while the appeal remains pending.

5) The appellant further indicated that it is apprehensive that unless the order for stay is granted it may be forced to admit unqualified students to the Advocates Training programme which would cause harm to the legal profession and thus render the appeal as a mere academic exercise.

6) On their part the respondents opposed the application stating that the court lacked jurisdiction to entertain an application for stay of execution of the decree in an intended proposed appeal as opposed to an actual appeal.

7) The respondents argued that they will suffer irreparable loss if the order for stay is granted in that they will miss out admission to the school of law for the second consecutive year. They further argued that they stand to suffer substantial loss that can never be compensated if the applicant’s appeal were to fail.

8) The background of this application appear to be short and straightforward. On 15th October 2021, the Legal Education Appeals Tribunal made a judgment ordering the appellant herein to admit the respondents to the Advocates Training Programme. Being aggrieved the appellant preferred an appeal seeking to impugn the aforesaid decision.

9) The respondents are said to have served the appellant with the decree with the sole intention to have the decision enforced against the appellant.

10) The appellant has also argued that unless an order for stay of execution of the Tribunal’s judgment/decree it would suffer substantial loss in that it will have been forced to admit unqualified students to the Advocates Training Programme which would cause harm to the Legal profession.

11) With respect, I am persuaded by the appellant’s submission that indeed it may suffer substantial loss as opposed to respondent if the order for stay is denied.

12) Having considered the material placed before this court, and the rival oral submissions made by learned counsels, I find the motion dated 30. 11. 2021 to be meritorious. The motion is allowed. Consequently, an order for stay of execution of the judgment of the Legal Education Appeals Tribunal made on 15. 10. 2021 is granted pending the hearing and determination H.C.C.A no. E692 of 2021. This court further notes that time is of essence in this matter and therefore there is need to fast track the appeal. This court makes the following orders and directions:

i. The appellant to prepare, file and serve the record of appeal within 15 days from the date of this ruling.

ii. Mention on 28/3/2022 for further orders and directions.

iii. Costs of the motion to abide the outcome of the appeal.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 11TH DAY OF MARCH, 2022.

……………………….

J. K. SERGON

JUDGE

IN THE PRESENCE OF:

……………………………. FOR THE APPLICANT

……………………………. FOR THE RESPONDENT