[2022] KEHC 12330 (KLR)

Mjomba Agencies Limited v Mbugua & another (Civil Appeal E501 of 2021) [2022] KEHC 12330 (KLR) (Civ) (10 June 2022) (Ruling)

Neutral citation: [2022] KEHC 12330 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E501 of 2021

DO Chepkwony, J

June 10, 2022

Between

Mjomba Agencies Limited

Appellant

and

Leonard Munyua Mbugua

1st Respondent

Grace Simaloi Sakunta t/a Munleo Hardware 7 Metal Fabricators

2nd Respondent

Ruling

1. Before me is the appellant’s Notice of Motion application dated September 15, 2021. It is seeking for orders that;a.Spent;b.Pending the hearing of this application, this honorable court be pleased to reinstate the interim orders given herein;c.In the alternative, an order of status quo do issue preserving the goods contained in the proclamation dated December 14, 2021;d.Costs be provided for.

2. The appellant herein filed an appeal vide a Memorandum of Appeal dated August 12, 2021 and an application for stay vide a Notice of Motion application dated August 25, 2021. On August 26, 2021, this court issued an interim stay of execution pending the inter-partes hearing of the application for stay. In return, the respondent filed a preliminary objection dated October 18, 2021 on grounds that the law Firm of Kalove & Company Advocates are not properly on record since they were not on record for the appellant at the trial court hence they are in contravention of order 9 rule 9 of the Civil Procedure Rules. The interim orders were later extended on September 22, 2021. On September 9, 2021 when the application dated August 25, 2021 came for hearing, the respondent submitted that the firm of advocates on record for the appellant are not properly on record. Mr Mwangi who was on record on behalf of the Firm of Kalove & Company Advocates indicated that they needed to seek instructions on the issue of being on record so that they could regularize their status quo.

3. The court directed the appellant to put their house in order and seek another date at the registry but did not extend the interim orders. It is on this basis that the respondent proceeded to execute hence the instant application.

4. On January 20, 2022, Hon Justice Sergon re-issued the interim orders staying execution of the trial court’s decree and later on February 21, 2022 extended the same. Owing to this, the interim orders stand reinstated, as such prayer no 2 in the application has been dispensed with.

5. It is the appellants prayer that since technically the application has been allowed by virtue of the orders of January 20, 2022 and February 21, 2022, this court to direct that the substantive application for stay be heard. I agree with the appellant.

6. I wish to also dispense with the respondent’s preliminary objection dated October 18, 2021 in order to save on this court’s time.

7. Order 9 Rule 9 of the Civil Procedure Rules provides;“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 by 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.

8. The Court of Appeal in the case of Tobias M Wafubwa –vs- Ben Butali [2017] eKLR, when faced with a similar issue pronounced itself as follows;“…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 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.”The court went further to state;“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.”

9. It is therefore clear that the appeal and the application by the appellant are independent suits not bound by order 9 rule 9 and the Firm of Advocates on record for the appellants herein needed no leave of court to come on record. The respondent’s Notice of Preliminary Objection dated October 18, 2021 is hereby dismissed.

10. By virtue of the orders of January 20, 2022 and February 21, 2022 reissuing the interim orders, this application stands allowed.

11. The applicant is directed to proceed and prosecute the application dated August 25, 2021 within 30 days from the date hereof. Each part to bear own costs.It is hereby ordered

RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 10TH DAY OF JUNE, 2022. D O CHEPKWONYJUDGEIn the presence of:Mr counsel holding brief for M/S Chege for the respondentNo appearance for applicantCourt assistant - Kevin