[2022] KEHC 16190 (KLR)

Mathenge v Nyingi (Civil Appeal 3 of 2017) [2022] KEHC 16190 (KLR) (Civ) (8 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16190 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 3 of 2017

JN Mulwa, J

December 8, 2022

Between

Patrick Kanyoro Mathenge

Appellant

and

Samwel Mwenje Nyingi

Respondent

Ruling

1. This is a Ruling in respect of the appellant’s notice of motion dated June 20, 2022 and the respondent’s notice of preliminary objection dated July 5, 2022.

2. Theappellant’s application is brought under section 1A, 1B & 3A of the Civil Procedure Act, Order 21 rule 1B, Order 22 rule 22, Order 40 Rule 6, Order 51 rule 1 of the Civil Procedure Rules, article 159 (2) (a) & (d) of the Constitution of Kenya, 2010. The appellant is seeking a stay of execution of the judgment delivered on December 9, 2016 in Milimani CMCC No. 5837 of 2013 pending the hearing and determination of the Appeal herein.

3. The application is premised on the grounds set out on its face and the appellant’s supporting affidavit.

4. The respondent opposed the application by way of a replying affidavit sworn onJuly 5, 2022.

5. In its preliminary objection, the respondent seeks that the appellant’s application be dismissed with costs on the ground that the Notice of Change of Advocates dated June 20, 2022 and the said application were filed contrary to the provisions of Order 9 Rule 9 of the Civil Procedure Rules, 2010.

6. The court has carefully considered theappellant’s application, the parties respective affidavits in support and in opposition of the application, the respondent’s preliminary objection and the parties’ respective written submissions.

Whether the Respondent’s Preliminary Objection is merited? 7. The respondent contends that the notice of change of Advocates dated June 20, 2022is defective and irregular for two reasons: firstly, that the law firm of Waruhiu K'Owade & Ng'ang'a Advocates has never been instructed by the Appellant to act on its behalf or at all in this matter; secondly, that the firm of Ondieki Orangi & Co. Advocates who purportedly came on record for the Appellant by virtue of the said Notice of Change of Advocates did not seek prior leave of court as required under Order 9 Rule 9 of theCivil Procedure Rules, 2010. The Respondent thus submits that in the premises, the Application dated June 20, 2022 filed by the law firm of Ondieki Orangi & Company Associates is equally irregular, null and void for having been filed by a stranger to the Appeal proceedings.

8. The Notice of Change of Advocates dated June 20, 2022 reads as follows:-“Take Noticethat the appellant has appointed the firm of M/s Ondieki Orangi & Co. Associatesto act for it in this matter instead of the firm ofWaruhiu K’owade & Nganga Advocates.Take Further Noticethat henceforth his address of service for purpose of this matter shall be care of Ms. Ondieki Orangi & Co. AssociatesDated at Nairobi this 20th day of June 2022. Ondieki Orangi & Co. AssociatesAdvocates for the appellant

9. The appellant did not oppose the preliminary objection or address the same in its written submissions filed herein. Be that as it may, the Memorandum of Appeal dated 6th January 2017 was lodged by the firm of Njeri Mukururi and Company Advocates. It is therefore factual that the firm of Waruhiu K'Owade & Ng'ang'a Advocates indicated on the Notice of Change, have never been on record for the Appellant herein. Rather, they represent the Respondent in these proceedings. Be that as it may however, this cannot be a proper ground for a preliminary objection as the same must be based on a pure point of law.

10. Was the Notice of Change filed contrary to Order 9 Rule 9 of the Civil Procedure Rules, 2010? The said provision stipulates that:“When there is a change of advocate, or when a party decides to act in person having previously engaged an advocate, after judgment has been passed, such change or intention to act in person shall not be effected without an order of the court—a.upon an application with notice to all the parties; orb.upon a consent filed between the outgoing advocate and the proposed incoming advocate or party intending to act in person as the case may be.”1. Is Order 9 Rule 9 applicable to appeals? In Tobias M. WafubwavBen Butali [2017] eKLR, the Court of Appeal held that:“Once a judgment is entered, save for matters such as applications for review or execution or stay of execution inter alia, an appeal to an appellate court is not a continuation of proceedings in the lower court, but a commencement of new proceedings in another court, where different rules may be applicable, for instance, the Court of Appeal Rules, 2010 or the Supreme Court Rules, 2010. Parties should therefore have the right to choose whether to remain with the same counsel or to engage other counsel on appeal without being required to file a Notice of Change of Advocates or to obtain leave from the concerned court to be placed on record in substitution of the previous advocate.As this dispute concerned an appeal from the Principal Magistrate’s Court to the High Court, it involved the commencement of new proceedings, and we are satisfied that the respondent’s counsel was entitled to commence them without filing a Notice of Change of seeking the leave of the court to be placed on record.”

12. This court shares the same view as above. An appeal is a separate and independent suit that is not bound by the restrictions under Order 9 Rule 9 of the Civil Procedure Rules. This ground of objection therefore fails as well. The upshot is that the Respondent’s preliminary objection is not merited.Whether the court should grant a stay of execution of the judgment delivered on December 9, 2016in Milimani CMCC No. 5837 of 2013 pending the hearing and determination of the Appeal herein

13. The conditions necessary for the grant of stay of execution pending appeal are laid out in Order 42 Rule 6(1) & (2) of the Civil Procedure Ruleswhich provides that:“6. (1)No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.

(2)No order for stay of execution shall be made under sub-rule (1) unless:a.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; andb.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.”

14. From the said provisions, it is clear that in order to succeed in an application for stay of execution, an applicant must demonstrate that substantial loss may result unless the order of stay is issued; that the application has been brought without undue delay; and must give security for the due performance of any decree or order that may ultimately be found to be binding on the applicant.

15. On the first limb, it is imperative to note that substantial loss in its various forms, is the cornerstone of the exercise of discretion in granting stay; seeKenya Shell Ltd v Kibiru &another [1986] KLR 410. In this case, the Appellant averred that if the Respondent proceeds with execution of the substantial judgment sum of Kshs. 1,000,000/= together with the interest thereon, he may not recover the same in case his appeal succeeds since the Respondent is a natural person whose financial means is unknown. The Respondent on the other hand submitted that no substantial loss will be occasioned to the Appellant in the event that stay is not granted because it has not been proved that he will be unable to reimburse the decretal sum in case the Appeal is successful.

16. It is well settled that where an appellant expresses reasonable fears regarding the respondent’s inability to refund the decretal, the evidential burden of proof shifts to the Respondent to controvert the same by way of Affidavit evidence as that is a matter which is peculiarly within his or her knowledge; see National Industrial Credit Bank Ltd v Aquinas Francis Wasike & another [2006] eKLR. The respondent has not discharged this burden by demonstrating his ability to refund the decretal sum in case the Appeal is successful. The court is therefore satisfied that the appellant stands to suffer substantial loss if stay of execution is not granted.

17. On the second limb, it is common ground that judgment appealed from was delivered on December 9, 2016 while the instant appeal was filed on June 20, 2022. This is over five and a half years later which constitutes a very long period of delay. The appellant has not made any effort to explain the delay in bringing the instant application. The court therefore finds that there was inordinate delay in filing the instant application

18. On the third limb, theappellant has indicated that he is ready and willing to furnish any such reasonable security that the court may order. In this regard, he has proposed to deposit the full decretal amount in a joint interest earning account in the names of both advocates. The Respondent on the other hand has urged the court not to give any orders on security as he has been denied the fruits of his judgment for six years. The Respondent also submitted that the appellant has previously made proposals for settlement of the decretal sum but failed to honour the same.

19. In the court’s view, whereas it’s a good gesture that the appellant is suddenly to deposit the entire decretal sum in an interest earning account, this is not a case where stay of execution pending appeal should issue. The unexplained inordinate delay in filing the instant application demonstrates that the application was an afterthought. Further, the court notes that the Appellant seems disinterested in his appeal since he has not taken any step towards the prosecution of the appeal since lodging the Memorandum of Appeal six years ago on January 6, 2017. This application is therefore an attempt by the appellant to delay and frustrate the Respondent from enjoying the fruits of his lawful judgment which this court will not condone.

20. The upshot is that the appellant has not made out a case for the grant of stay of execution pending appeal.

Conclusion 21. For the foregoing, the appellant’s notice of motion dated June 20, 2022 and the respondent’s notice of preliminary objection dated July 5, 2022 are both dismissed. The respondent is awarded the costs of the application. there shall however be no order as to costs in respect of the respondent’s preliminary objection.

Orders accordingly.Delivered, Dated and Signed this 8thDay of December 2022. J.N. MULWAJUDGE