https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7441

Shariff & 3 others v Masinde t/a Masinde and Co Advocates (Commercial Case E002 of 2024) [2026] KEHC 7441 (KLR) (14 May 2026) (Ruling) Neutral citation: [2026] KEHC 7441 (KLR) Republic of Kenya In the High Court at Bungoma Commercial Case E002 of 2024 MS Shariff, J May 14, 2026 Between Nazmudin Shariff 1st Plaintiff Altaf Shariff 2nd Plaintiff Firoz Shariff 3rd Plaintiff Ariff Shariff 4th Plaintiff and Simiyu Johnson Masinde T/A Masinde And Co Advocates Defendant Ruling A. Background 1.The plaintiff herein brought this suit against the defendant Simiyu Johnson Masinde Esquire Advocate T/A Masinde & Co. Advocate by way of an originating summons and craved for orders inter alia that the defendant do render accounts of monies had and received by him as Counsel for the plaintiffs in respect of settlement of Bungoma HCC No. 85 OF 2005 Nazmudi Shariff and others versus Kenya Power & Lightning Company Limited. 2.Judgment was entered in the favour of the plaintiffs on 17/5/2024 and the defendant was ordered to pay them the judgment sum standing at Kshs. 42,000,000/= (forty-two Million shillings) that he withheld from them since 4th October 2018. B. Application 3.On 27th May 2024 the defendant moved this court by way of a Notice of Motion wherein the craved for the following orders:-a.Spentb.Spentc.Pending the payment of debts owed by Cytonn Investment limited the defendant herein by the official receiver in insolvency petition no. E063 of 2021 (Cytonn High Yields Solutions LLP(In administration) versus Official receiver and the hearing and determination of the Indemnity Suit between the applicant J.S. Masinde against AIG Kenya Insurance for indemnity of Ten Millions Shillings this court be pleased to arrest and stay all executions of judgment or decree herein, against Johnson Masinde Simiyu trading as Masinde and Company Advocates.d.Spente.Cost of application be in the cause. 4.The judgment debtor/applicant swore a supporting affidavit on 27/05/2024 wherein he deposed that he has so far paid the plaintiff/decree holders a sum of Kenya Shillings Five Million and that he has commenced indemnity proceedings against his insurer, AIG Kenya Insurance Company Limited and that he has also joined the list of unsecured creditors in the insolvency petition lodged against Cytonn Investment PLC. 5.The defendant posits that his said two moves provide credible and practical prospects of full recovery of the decretal sum owed to the plaintiffs and on that account, he beseeches this court to stay the execution of the judgment and decree herein. 6.It is instructive to note that the applicant herein premises his application on the provisions of Section 1A, AB 3A of the Civil Procedure Act CAP 21 Laws of Kenya and on order 22 Rule 22 of the Civil Procedure Rules. C. Plaintiffs’ response 7.In opposition the defendant’s application, the plaintiffs filed a replying affidavit sworn by Nazmudin Shariff on 1st July 2024 wherein he deposed that the defendant had since 4th October 2018 withheld a sum of Kshs. 42 Million, being the decretal sum in Bungoma High Court Civil case number 85 of 2005; Nazmudin Shariff and 3 others versus Kenya Power & Lightning Company Limited, hence the filing of this suit which was allowed vide a judgment delivered on 17th May 2024. That the defendant has not appealed against the said judgment. 8.It is further deposed on behalf of the plaintiffs that the continued delay in the defendant in remitting the said judgment owed to them has occasioned them economic hardship, substantial loss of livelihood and emotional distress all of which is unjust and unnecessary. 9.The plaintiffs posit that they are not privy to the indemnity suit between the defendant and his insurer and in any event the professional negligence insured is Kshs. 10 Million only which is not sufficient to settle their claim. 10.As regards the defendant’s information that he is awaiting settlement in the insolvency proceedings of Cytonn Investment PLC, the plaintiffs are categorical that the said proceedings do not involve them and the same have no nexus to their claim herein. D. Submissions 11.Whereas parties were directed to canvass the defendant’s application herein by way of written submissions, the defendant did not file any submissions. D.1. Plaintiffs’ Submissions 12.The plaintiffs outlined two issues for determination namely whether the defendant has met the threshold for grant of orders for stay of execution and how the grant of the stay orders will adversely affect them economically. 13.The plaintiffs submit that the defendant has not demonstrated sufficient cause for grant of stay orders as envisaged under Order 22 Rule 22 (i) of the Civil Procedure Rules. That the reason advanced by the defendant that he is pursuing his insurer for professional indemnity and further that he is unsecured creditor in an insolvency petition against Cytonn Investment PLC, do not constitute sufficient cause for grant of stay of execution orders, regard being had to the economic hardship that the plaintiffs are being subjected to due to the delayed payment of the Judgment sum. 14.The plaintiffs submit that in the absence of an appeal against the judgment entered in their favour, the defendant lacks any cause for grant of orders of stay of execution. Further that the defendant, being a professional, is duty bound to comply with court orders by paying up the decretal sum and that this court should not condone his delay tactics. 16.The plaintiffs point out that the grant of orders of stay of execution will not only exacerbate their precarious economic state but will also compound their emotional and psychological distress. The plaintiffs have placed reliance on the cases of Karia versus Keshe (Environment & Land Appeal No. E006 of 2023) and Re Global Tours and Travels Limited, which cases underscored the need for swift administration of justice. 17.The plaintiffs maintain that as the successful parties therein, they are entitled to enjoy the fruits of judgment. They further posit that this court should endeavour to ensure that the defendant pays up the judgment sum without any further ado so as to maintain judicial integrity. F. Analysis and determination 18.Upon considering the application herein, the affidavit in support thereof and the one in reply thereto, the plaintiffs’ submissions, the single issue that arises for determination is whether the applicant has made out a case for grant of orders of stay of execution of the judgment herein. 19.It is instructive to note from the onset that the case herein exemplifies a clear case of misappropriation of client’s funds by an advocate. Advocate Simiyu Johnson Masinde opted to invest the plaintiffs’ judgment sum in Cytonn Investment PLC for his own economic gain instead of paying them up. As it were Cytonn Investment PLC went under. The defendant/judgment debtor has expressly deposed that he is an unsecured creditor in the Insolvency Petition against Cytonn Investment PLC. The defendant’s prospects of getting his money back are slim given that his claim is subservient to the priority of the secured creditors. As regards his indemnity claim against AIG Kenya Insurance Company Limited, the same if successful, will only yield a sum of Ksh 10 million which is insufficient to settle the claim of Ksh 42 million. 20.The operative Order 22 Rule 22 of the Civil Procedure Rules provides as follows;“(1)The court to which a decree has been sent for execution shall, upon sufficient cause being shown, stay the execution of such decree for a reasonable time to enable the judgment-debtor to apply to the court by which the decree was passed, or to any court having appellate jurisdiction in respect of the decree or the execution thereof, for an order to stay the execution, or for any other order relating to the decree or execution which might have been made by the court of first instance, or appellate court if execution has been issued thereby, or if application for execution has been made thereto.(2)Where the property or person of the judgment-debtor has been seized under an execution, the court which issued the execution may order the restitution of such property or the discharge of such person pending the results of the application.(3)Before making an order to stay execution or for the restitution of property or the discharge of the judgment-debtor the court may require such security from, or impose such conditions upon, the judgment-debtor as it thinks fit. 21.A reading of the above rules clearly reveals that a judgment debtor has to satisfy two conditions before this court can give him a lifeline by staying the execution of a judgment. The first test to be met is sufficiency of cause to grant orders of stay. The second condition is the furnishment of security for the due satisfaction of the judgment in the event the judgment debtor is unsuccessful in the appellant court any other forum that he approaches for redress. 22.What constitutes sufficient cause has no textbook definition and a court of law is enjoined to adopt a liberal construction of the phrase so as to advance the cause of justice when no negligence, or inaction or lack of bona fides is imputed upon the judgment debtor/applicant. That was the holding in the Tanzanian case of The Registered Trustees of the Archdiocese of Dares Salaam v The Chairman Bunju Village Government & Others Civil Appeal No 147 of 2006. 23.Musinga JA defined sufficient cause or good cause in the case of The Attorney General v The Law Society of Kenya & Anor, Civil Appeal No 133 of 2011 as follows:“… the burden placed on a litigant (usually by court rule or order) to show why a request should be granted or an action excused.” 24.Blacks Law Diction 9th Edition defines sufficient cause at page 251 thus:“Sufficient cause must therefore be rational, plausible, logical, convincing, reasonable and truthful. It should not be an explanation that leaves doubts in a judge’s mind. The explanation should not leave unexplained gaps in the sequence of events.” 25.The Supreme Court of India had occasion to render itself on what constitutes sufficient cause in the case of Parimal v Veena (2011) 3 SCC 545, thus:“sufficient cause" is an expression which has been used in large number of statutes. The meaning of the word "sufficient" is "adequate" or "enough", in as much as may be necessary to answer the purpose intended. Therefore the word "sufficient" embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the view point of a reasonable standard of a curious man. In this context, "sufficient cause" means that party had not acted in a negligent manner or there was want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been "not acting diligently" or" remaining inactive." However, the facts and circumstances of each case must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously." 26.It is instructive to note that the judgment debtor/applicant has not challenged the judgment herein by way of an appeal. The fora that a judgment debtor is expected to approach under Order 22 Rule 22 must relate to the judgment and must not be extraneous thereto. In this application there exists no nexus nor any correlation between the judgment that the plaintiffs herein seek to execute and the indemnity claim by the judgment debtor against AIG Kenya Insurance Company Limited. The same position applies to the Insolvency Petition against Cytonn Investment PLC. 27.The judgment debtor has overtly been negligent in opting to invest monies had and received on account of the plaintiffs’ judgment in Bungoma HCCC NO 85 of 2005: Nazmudin Shariff & Others v Kenya Power & Lighting Company Ltd, in Cytonn Investment PLC. The applicant lacked bona fides in undertaking the said venture that was blatant misappropriation of clients’ monies. I thus find that the judgment debtor has failed to meet the threshold of what constitutes sufficient cause. 28.So far, no security for the due payment of the judgment sum has been offered by the judgment debtor. It is thus evident that he has no desire of securing the judgment sum, yet he craves for orders of stay of execution of the judgment. He is but the proverbial drowning man clutching onto passing straws. This court cannot be his life saver. The applicant made his bed he must now lay on it. 29.Whereas the judgment debtor has also invoked the oxygen principles under sections 1A and 1B and the inherent jurisdiction of this court under section 3A of the Civil Procedure Act, I fail to fathom how these statutory provisions will come to his aid, given that he has opted to abuse court process in an attempt to shield himself from meeting his professional obligation owed to the plaintiffs. The latter are entitled to payment of the judgment sum. The misappropriation of the said judgment sum by the applicant amounts to professional misconduct and theft on the part of the judgment debtor whom the plaintiffs had entrusted with the original suit against KPLC. It is indeed true that the plaintiffs continue to suffer economic hardship and emotional distress due to the applicant’s persistent non remittance of the judgment sum to them. The plaintiffs have been highly inconvenienced by the conduct of the applicant/ judgment debtor who happens to be an officer of this court. G. Conclusion 30.Premised upon the analysis made hereinabove, the conclusion cannot be escaped that the application herein is hopelessly unsustainable as it is devoid of merit, is frivolous, is vexatious and is a gross abuse of court process. H. Orders 31.The orders that commend themselves to me are the dismissal of this application with costs to the plaintiffs which costs are assessed at Ksh 20,000. 32.This file is hereby marked as closed. DATED SIGNED AND DELIVERED AT MAKADARA THIS 14TH DAY OF MAY 2026.M.S. SHARIFFJUDGEIn the presence of :N/A by PartiesN/A by parties’ advocatesPeter Machoni and Annastancia Nyambura – Court Assistants