[2024] KEHC 5884 (KLR)

Nippon Imports Limited v Muthoni & another (Suing as the administratrix and legal representatives of the Estate of Martin Njeru Kathuri (Deceased) & another (Civil Appeal E016 of 2024) [2024] KEHC 5884 (KLR) (23 May 2024) (Ruling)

Neutral citation: [2024] KEHC 5884 (KLR)

Republic of Kenya

In the High Court at Embu

Civil Appeal E016 of 2024

LM Njuguna, J

May 23, 2024

Between

Nippon Imports Limited

Appellant

and

Caroline Wawira Muthoni & Purity Karimi Kathuri (Suing as the administratrix and legal representatives of the Estate of Martin Njeru Kathuri (Deceased)

1st Respondent

David Karanja Thumi

2nd Respondent

Ruling

1. The applicant filed a notice of motion dated 26th February 2024, which is supported by the grounds set out on its face and the facts deposed in the supporting affidavit thereof. The orders sought are as follows:1. Spent;2. Spent;3. That this honourable court be pleased to grant orders for stay of execution of the judgment and decree both dated 29th August 2023 delivered at the trial court by Hon. D. Endoo, proclamation notice dated 07th December 2023, ruling delivered on 22nd February 2024 at the trial court and all consequential orders emanating therefrom, pending hearing and determination of this appeal; and4. The costs be provided for.

2. The applicant stated that the trial magistrate delivered a judgment on 29th August 2023 and dismissed the applicant’s application for stay of execution dated 11th December 2023 without making an order as to costs. That the applicant appealed against the said decision but by then, the respondent had already moved to execute for the decretal sum since there were no stay orders in place. That the applicant did not have control of the said motor vehicle at the time of the accident and that it is wrong to presume that it is able to satisfy the decretal sum. It was the applicant’s averment that the trial magistrate did not specify whether the judgment would attach jointly and severally and the company was merely a registered owner and not a beneficial owner. That it is in the interest of justice that the orders sought be granted.

3. The application is opposed through grounds of opposition in which the respondents stated that the appeal was filed 3 months after delivery of the impugned judgment and without the leave of court. That the applicant has not demonstrated what loss it will suffer if the orders are not granted and what security it is providing for performance. That the deponent of the supporting affidavit is not an officer of the company, therefore lacking locus to depose on its behalf and that the appeal does not have any chance of success. That the application is an abuse of the court process and it should be dismissed.

4. The respondents also filed a preliminary objection dated 06th march 2024 in which they stated that the applicant did not seek leave before filing the appeal yet it is not an appeal as of right as provided under section 75(1) of the Civil Procedure Act and Order 43 Rule 1-3 of the Civil Procedure Rules. It was also their case that the deponent of the supporting affidavit does not have capacity to depose on behalf of the applicant, which renders the application incompetent.

5. The court directed the parties to file their written submissions but only the applicant complied.

6. The appellant/applicant submitted that it did not appoint the advocate who entered a consent judgment on its behalf and secondly, it is not the legal and beneficial owner of the motor vehicle. That the notice of motion dated 11th December 2023 sought stay of execution and review of the trial court’s judgment but the same was dismissed and it is the subject of this appeal. That the applicant is willing to provide security for performance on such terms as the court shall deem fit and as provided under Order 42 Rule 6 of the Civil Procedure Rules. Reliance was placed on the case of Butt v Rent Restriction Tribunal [1982] KLR 417 which was cited authoritatively in the case of Clement Wakari Njoroge v Daniel Mwangi Wahome (suing as legal representative of the estate of Julia Wamaitha Mwangi) [2022] eKLR where the court emphasised that stay of execution may be granted based on the court’s discretion.

7. It argued that it was not the legal owner of the motor vehicle since there is in place a sale agreement between the applicant and the 2nd respondent showing that the vehicle would belong to the 2nd respondent after signing the agreement and as the payment for the same is staggered. Further reliance was placed on the indemnity clause in the sale agreement which provided that the applicant would be indemnified even in the event of an accident. That the appeal is arguable and that the application herein should be allowed so that the applicant does not suffer substantial loss.

8. The issue for determination is whether the preliminary objection has merit.

9. The applicant seeks stay of execution pending determination of the appeal which has already been filed. The application has been opposed through a preliminary objection and grounds of opposition in which the respondents stated that the appeal is improperly before the court and that the same should have been filed after the applicant has sought for and is granted leave to appeal out of time. They also stated that Florence Kulola, who has deposed the supporting affidavit to the application, is not an officer of the company and has no capacity to depose on behalf of the company. That on this basis, the application is incompetent. That the firm of Wandai Matheka did not provide a letter of authority instructing them to file the application.

10. It is important to address the points raised in preliminary objection before dealing with the substantive application. Through the application dated 11th December 2023, the applicant sought, inter alia, leave to change advocates. The application was dismissed through the ruling of the court delivered on delivered on 22nd February 2023. Order 9 Rule 9 of the Civil Procedure Rules 2010 provides as follows;“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; (emphasis mine)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.”

11. There is no doubt that this provision of the Civil Procedure Rules is crucial. In the case of S.K. Tarwadi v Veronica Muehlemann [2019] eKLR it was held;“………. the essence of Order 9 Rule 9 CPRis to protect advocates from mischievous clients who will wait until a judgement has been delivered and then sack the advocate and either replace him with another advocate or act in person. The provision is therefore an important one and cannot be wished away…”

12. In its ruling, the trial court did not address this prayer which was sought alongside review of the judgment. From a perusal of the memorandum of appeal filed herein, the issue of representation herein has not been raised. Rather, the grounds of appeal are on the substantive issues arising from the judgment delivered on 29th August 2023. There is no harm if the issue of change of advocate is combined with other orders so long as it is determined first. Order 9 Rule 10 provides thus:“An application under rule 9 may be combined with other prayers provided the question of change of advocate or party intending to act in person shall be determined first.”

13. On this issue, the trial magistrate simply noted the applicant’s argument that it did not instruct counsel because there was one appointed by the insurance company. The issue was not determined and she proceeded to dismiss the application in its totality. It should have been the case that the trial court considers this prayer first. However, since it is the same ruling that is the subject of this appeal, the same will be determined as a substantive issue given that the appeal seeks to overturn the ruling in its entirety.

14. In the preliminary objection, the respondents also took issue with the fact that the applicant did not seek leave to appeal since the appeal did not lie as of right under Section 75(1) of the Civil Procedure Act. From a perusal of the trial court proceedings, the applicant did not seek leave to appeal against the ruling dated 22nd February 2024. Regardless, it filed a memorandum of appeal promptly alongside the application herein. Order 43(1) of the Civil Procedure Rules provided for orders against which an appeal may lie as of right. The appeal herein is not one of them and the applicant should have sought leave before lodging the appeal. The applicant’s failure to do so elicits a point of law that has been raised through the preliminary objection. Unfortunately for the applicant, such leave cannot be sought after the appeal has already been lodged. (see the case of Directline Insurance Co. Ltd v Onyango (Civil Appeal E345 of 2022) (2022) eKLR).

15. In light of the foregoing, the appeal is not arguable, having been filed without the leave of court. It is for this reason that the preliminary objection is found to be meritorious and the same is hereby allowed. The application dated 26th February 2024 is hereby struck out.

16. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 23RD DAY OF MAY, 2024. L. NJUGUNAJUDGE..................................................... for the Appellant/Applicant………………………………………..………………………………....…… for the 1st Respondent………………………………………..…………………………………....… for the 2nd Respondent