https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10166

Mbuvi v Cheplemoi & another (Civil Appeal E037 of 2025) [2026] KEHC 10166 (KLR) (29 May 2026) (Ruling) Neutral citation: [2026] KEHC 10166 (KLR) Republic of Kenya In the High Court at Machakos Civil Appeal E037 of 2025 EO Bitta, J May 29, 2026 Between Peter Muindi Mbuvi Appellant and Monica Cheplemoi Respondent and Beta Base Auctioneers Interested Party Ruling 1.The Applicant, Peter Muindi Mbivi, through the firm of Ndiema and Company Advocates, moved the Court vide a motion on notice dated 31st January 2025; the motion on the face of it was brought under the provisions of Order 42, Rule 6 of the Civil Procedure Rules, sections 1A, 1B and 3A of the Civil Procedure Act. 2.The Applicant seeks from the Court an order of temporary stay of execution of the Judgment/decree issued at the Chief Magistrate's Court at Mavoko on the 29th day of November 2025 in MCC Case No. E438 of 2023. The Applicant also sought an order barring Betabase Auctioneers, who are named as an interested party to the motion, from recovering/repossessing the Applicant’s properties in execution of the said Judgment pending the hearing and determination of the application inter partes. 3.The Applicant also sought to be granted leave by the Court to lodge his Appeal out of time pending the hearing and determination of his application. 4.Finally, the Applicant sought from the Court an order to set aside the judgment delivered on the 29th November 2025 by the Chief Magistrate's Court at Mavoko in MCC Case No. E438 OF 2023 or the issuance of any other appropriate order (s), relief or declaration that it may deem fit and just to safeguard the Applicant’s rights and basic fundamental freedoms as enshrined in the Constitution of Kenya 2010. 5.The Applicant’s motion was premised on several grounds set out in the body of the motion, which grounds were restated in the supporting affidavit of the Applicant, Peter Muindi Mbuvi, sworn on the 31st day of January 2025 at Machakos. 6.It was the Applicant’s position that his fundamental rights under Articles 40, 27(1) and 159 of the Constitution will be violated if the orders sought were not granted forthwith. 7.The Applicant stated that being dissatisfied with the judgment delivered by the Chief Magistrate’s Court at Mavoko in MCC Case No. 438 of 2023, he had preferred an appeal which in his view was meritorious with overwhelming chances of success. He stated that the learned trial magistrate failed to consider the Applicant’s defence. 8.The Applicant was apprehensive that the Respondent had already commenced execution proceedings and that he stood to suffer substantial loss if a stay is not granted and that his appeal would be rendered nugatory. 9.The Applicant indicated his willingness to abide by any terms/conditions imposed by the court in the circumstances. 10.The Applicant also stated that he had initially instructed the advocate who was on record at the lower court and the advocate promised to file an appeal against the lower court’s judgment, but the said counsel failed to do so occasioning the delay in lodging Appeal on time, reasons whereof the Applicant was seeking to be allowed to lodge his Appeal out of time in the interest of justice. 11.The Applicant provided copies of the proclamation of movable assets form, an invoice and a decree served upon him by auctioneers dated 27th January 2025 and a copy of his Memorandum of Appeal. 12.Upon service of the motion, the Respondent filed a replying affidavit in response to the motion, sworn on 6th August 2025 together with an application dated 26th August 2025 seeking the striking out of the Appellant/Applicant’s application and expunging of all documents filed on the Applicant’s behalf by the firm of Ndiema and Co. Advocates 13.The Respondent’s motion was predicated on grounds that a search had been undertaken with the Law Society of Kenya which revealed that there was no advocate registered as practising with the firm of Ndiema and Company Advocates; further, there was no advocate in the Roll of Advocates named Steve Njomo who had been issued with a practising certificate. 14.The Court on 1st October, 2025 directed the Respondent to serve the application upon the Appellant/Applicant’s counsel as well as the Appellant in person owing to the gravity of the allegations in the Respondent’s motion. 15.The Appellant/Applicant failed to respond to the Respondent’s motion despite being given several opportunities by the court to do so. Only the Respondent filed submissions on the two applications pursuant to the directions of the Court. 16.I have considered the Applicant’s application dated 31st January, 2025, the supporting affidavit of Peter Muindi Mbuvi in support thereof, the Replying affidavit of the Respondent, the Respondent’s application dated 26th August 2025, the supporting affidavit thereto and the Respondent's submissions on the applications. 17.The issue of propriety of the pleadings filed by a purported firm of advocates in my considered view ought to receive precedence over any other issue in the matter, for obvious reasons that if the same was confirmed it would negate any consideration of the Applicant’s motion. 18.The provisions of section 31 of the Advocates Act provide as follows;"Subject to section 83, no unqualified person shall act as an advocate or as such cause any summons or other process to issue, or institute, carry on or defend any suit or other proceedings in the name of any other person in any civil or criminal jurisdiction." 19.Subsection (2) of the same section deems any person who contravenes section 31(1) to be in contempt of court liable for punishment accordingly. 20.To my mind, the discernible policy of the law from a reading of the said provision is that the law considers masquerading so injurious to the administration of justice as to merit criminal sanction for contempt of court. 21.It is indubitable that the Applicant’s motion dated 31st January 2025 was drawn and filed by the firm of Messrs Ndiema and Company Advocates; the same was signed by one Steve Njomo who has been disavowed by the Law Society of Kenya as neither being an advocate of the High Court of Kenya nor being an advocate licensed to practice law at the time of institution of the motion. 22.The averments by the Respondent in the supporting affidavit of Elizabeth Gesare Ondieki remain unrebutted. 23.The upshot, I find that the Court must reject all the documents filed in contravention of express provisions of the law and contemptuous of the Court by the purported firm of Messrs. Ndiema and Co. Advocates. 24.Consequently, I find that the Respondent’s application dated 26th August 2025 merited. 25.The Respondent has additionally prayed for an order directed at the Registrar of the High Court to bring to the attention of the Directorate of Criminal Investigations and the Law Society of Kenya for investigation into the suspected case of impersonation by one Steve Njomo and the alleged firm of Messrs Ndiema and Company Advocates. 26.I have not perceived any basis for issuance of such coercive orders directed at the Registrar of the High Court; there is no indication of unwillingness on the part of the Registrar and secondly but most importantly, counsel for the Respondent, Elizabeth Gesare Ondieki who exhibited commendable industry in investigating and ferreting out the impostor, bears not only similar civic but professional responsibility as an officer of the Court on reporting. 27.The upshot is, I order as follows;A.An order be and is hereby issued expunging from the court record all pleadings, including the Applicant’s application dated 31st January 2025, documents, or proceedings filed and/or purportedly filed by the purported law firm of Messrs Ndiema and Company Advocates and one Steve Njomo.B.The entire suit is struck out with costs to the Respondent SIGNED, DATED AND DELIVERED AT NAIROBI THIS 29TH MAY 2026.EMMANUEL BITTAJUDGE OF THE HIGH COURT