https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1284

Registered Trustees of Ruiru Sports Club v Njeru Nyaga & Company Advocates LLP (Civil Appeal (Application) E463 of 2023) [2026] KECA 1284 (KLR) (10 July 2026) (Ruling) Neutral citation: [2026] KECA 1284 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal (Application) E463 of 2023 J Mohammed, M Ngugi & F Tuiyott, JJA July 10, 2026 Between The Registered Trustees of Ruiru Sports Club Applicant and Njeru Nyaga & Company Advocates LLP Respondent (Being an application for injunction from the Ruling of the Environment and Land Court of Kenya at Nairobi (Oguttu Mboya, J.) dated and delivered on the 31st May 2023 in ELC Misc. Appl. Case No. E083 of 2022) Ruling 1.From the documents placed before us, we gather that this application pits the applicant/client, The Registered Trustees of Ruiru Sports Club (hereafter ‘the applicant’) against its erstwhile advocates, Njeru Nyaga & Company Advocates LLP with respect to a sum of Kshs.41,289,401.80 due to the respondent from the applicant pursuant to a ruling of the Environment and Land Court (ELC, Oguttu-Mboya, J.) dated 31st May 2023. By its application in ELC Misc. Appl. Case No. E083 of 2022, the respondent had sought judgment in the sum of Kshs 41,289,401.80 against the applicant in respect of legal fees pursuant to a fee agreement entered into between the parties, with interest thereon at 14% per annum with effect from 15th January 2019 in line with the provisions of Rule 7 of the Advocates Remuneration Order. 2.In its ruling dated 31st May 2023, the ELC found that the respondent’s application was merited and entered judgment for the respondent as against the applicant as prayed in the application. The costs of the application were also awarded to the respondent. 3.Aggrieved by the ruling, the applicant filed the present appeal, being Civil Appeal No. E463 of 2023, as well as an application dated 3rd July 2023 seeking stay of execution of the said ruling. When the application came up for hearing before this Court on 13th December 2023, the parties recorded a consent order under the terms of which the sum of Kshs.41,289,401.80 payable by the National Land Commission (NLC) by virtue of the judgment in ELC No. E083 of 2022 was to be deposited in an escrow account in the joint names of the advocates for the parties within thirty (30) days from the date of the consent. 4.Prior to the consent order, the respondent had filed an application before the ELC dated 9th August 2023 seeking garnishee orders against the NLC with respect to the funds it held on account of the applicant. By its ruling dated 2nd November 2023, the ELC allowed the application and ordered that the monies held by the NLC be attached to satisfy the ruling given on 31st May 2023. This is the amount that was the subject of the consent order. 5.While the account appears to have been opened within the timeline stipulated in the consent order, the NLC did not deposit the amount within the said period, only doing so some eight months later, on 8th October 2024. It appears that the respondent then filed a number of applications before the ELC seeking to enforce the judgment of 31st May 2023, which seem to have triggered the application before us dated 25th July 2025. 6.Brought under, among others, rule 5(2)(b) of this Court’s Rules, the application seeks, at prayers 3 and 4, an order staying further proceedings in Milimani ELC Miscellaneous Application No. E083 of 2022 Njeru Nyaga & Company Advocates LLP -vs- Registered Trustees of Ruiru Sports Club and an order citing the respondent, Martin Njeru Nyaga Advocate for contempt of court for disobeying the court order dated 13th December 2023. 7.The application is based on the grounds set out on its face and is supported by an affidavit and further affidavit sworn by Peter Mwaura Kimani on 25th July 2025 and 18th August 2025 respectively. The applicant reiterates the essential facts of the dispute as set out above: that by a consent dated 13th December 2023, the parties agreed that the sum of Kshs 41,289,401.80 held by the NLC should be deposited in an escrow account in the joint names of Advocates for the parties within thirty days [30] days as a condition for the grant of stay pending the hearing and determination of the appeal; that the account was opened as agreed and on 29th January 2024, the applicant’s advocates wrote to the NLC requesting it to deposit the decretal amount in the escrow account, while the respondent’s advocates wrote a letter dated 30th January 2024 to the NLC with the same request. The applicant avers that on 16th September 2024, the NLC wrote to the respondent requesting it to provide the firm’s registration certificates and KRA PIN for the purposes of processing the said deposit. 8.It is the applicant’s averment that the respondent did not at any time protest the intention by the NLC to deposit the said amount outside the 30-day period stipulated in the consent order; that on the contrary, the respondent forwarded the documents requested on the same day; and the NLC deposited the said amount in the escrow account on 8th October 2024. 9.The applicant avers that the above matters notwithstanding, the respondent has filed yet another garnishee application in Milimani ELC Miscellaneous Application No. E083 of 2022 purportedly in execution of the decree emanating from the ruling dated 31st May 2023. The applicant avers that the respondent is in contempt of the court order dated 13th December 2023 as it continues to execute the decree emanating from the ruling aforesaid; that the said decree has been stayed by the consent order after the decretal amount was deposited in an escrow account as security pending the hearing and determination of the appeal; and the consent order has not been varied or set aside. 10.The applicant asks the Court to stay the proceedings in the matter before the ELC as the continued execution of the decree will render its appeal nugatory in that the respondent will have attached and utilized sums in other accounts belonging to the applicant; and if the appeal succeeds, the applicant may not be in a position to recover the amount from the respondent as he has not demonstrated his ability to refund the amount should the appeal succeed. 11.In his affidavit sworn on 18th August 2025 in opposition to the application, Martin Njeru Nyaga, a partner in the respondent firm, takes issue with the affidavit sworn in support of the application by Peter Mwaura Kimani on 25th July, 2025 which he avers should be struck out as neither he nor the other two trustees he has sworn the affidavit on behalf of are registered trustees of the Club; and that the registered trustees were informed by the members not to interfere with the financial affairs of the Club. We note that Mr. Nyaga makes further averments with respect to the powers of the trustees of the Club which fall outside the matters at issue in the application. 12.It is his averment, further, that at no time has the applicant obtained stay of execution orders; that the consent order to open an escrow account was not adhered to by the applicant's advocates as they opened an account after the 30 day period, and the deposit was made 8 months later; that the consent order having been time bound, it became a nullity after the expiry of 30 days. 13.Regarding the prayer for an order of contempt against him, the respondent avers that it is an attempt to deny him justice; that the applicant’s appeal is incompetent due to failure to file a complete record and has no chance of success as the agreement for fees was made with Ruiru Sports Club and cannot be varied by the Court, which is not privy to the agreement. He asserts that he can refund the decretal sum in the unlikely event that he is required to do so. It is his case that the application is unconstitutional, lacks merit and should be dismissed with costs. 14.At the hearing of the application on 5th November 2025, learned counsel, Mr. Prestone Wawire, appeared for the applicant while learned counsel, Mr. Nyaga, appeared for the respondent. Both counsel highlighted the parties’ respective submissions. 15.In the submissions dated 22nd August 2025, the applicant argues that it has an arguable appeal, citing in support the case of County Secretary of Kajiado & 47 others v Salaries & Remuneration Commission & another (20211 eKLR for the proposition that an applicant only needs to demonstrate one arguable ground in order to succeed on a 5(2)(b) application; and that an arguable appeal is not one that must necessarily succeed. The applicant identifies the issues arising for determination in its intended appeal as including whether the learned judge had jurisdiction to enter judgment of Kshs 41,289,401.80 on the basis of an alleged Fee Agreement within an Advocate/Client Bill of Costs; and whether the respondent ought to have filed a substantive suit for recovery of the decretal amount based on the alleged Fee Agreement. 16.On the second limb under rule 5(2)(b), the applicant submits that its appeal will be rendered nugatory if stay of proceedings is not granted since, its appeal being arguable, it would defeat reason not to stay proceedings in the lower court when the jurisdiction of the ELC is being challenged in this appeal; and that the lower court has delivered two rulings dated 22nd October 2024 and 20th February 2025 stating that it has no jurisdiction to entertain further proceedings since the matter is pending appeal before this Court; and further, that the respondent is executing the decree in the lower court while there is a consent order staying execution pending the determination of the appeal on condition that the decretal amount is deposited in an escrow account as security; and the said amount was deposited in the escrow account. 17.It contends, further, that should it succeed in its appeal, it may not recover the amount attached by the respondent in other accounts belonging to it as the respondent has not demonstrated his capacity to refund the said amount. 18.Regarding the prayer for an order of contempt against the respondent, the applicant submits that it should be issued as the respondent has disobeyed the order given by this Court on 13th December 2023; that he was a signatory to the consent, confirmed being aware of the order but contends that it lapsed as the decretal amount was deposited out of time. The applicant submits that the respondent is estopped from contending that the order had lapsed as it waived the right to challenge the late deposit by agreeing to open the joint escrow account out of time. 19.The applicant submits that the respondent has proceeded with execution by filing a garnishee application to attach other monies in the applicant’s accounts while knowing that the decretal sum was deposited as security pending the determination of the appeal. It cites the case of Kiru Tea Factory Company Limited vs. Stephen Maina Githiga & 14 Others (20191 KECA 933 [KLRJ and Shimmers Plaza Limited- vs- National Bank of Kenya Limited (2015) KECA 945 [KLR] with respect to the power of the Court to punish for contempt, and prays that its application be allowed. 20.In his submissions, the respondent terms the application an attempt to harass and exert undue influence on him for demanding legal fees agreed with the client in 2018 when other officials were in charge. He maintains that the applicant filed an incomplete appeal in 2023, obtained leave to file a Supplementary Record of Appeal within 14 days from 13th December,2023 but filed it one year later on 15th April 2025 without leave of the Court. In his view, the appeal is not arguable. 21.Regarding the prayer for orders of contempt of court against him, the respondent submits that the prayer is unsustainable as there has never been a stay of execution; that this Court struck out the applicant’s application for stay of execution on 20th June, 2025; that the order dated 13th December 2023 was valid only for 30 days, and the applicant has admitted refusal, failure or neglect to comply with it. The respondent urges this Court to put an end to the acts of impunity by the applicant by striking out both this application and the appeal. 22.We have considered the application, the affidavits in support and opposition thereto, and the submissions of the parties. The parties have made extensive averments and submissions on a variety of issues, including whether or not the trustees of the applicant have authority to deal with its financial matters; whether there is malice displayed by the applicant; and whether its appeal is competent for failure to file a supplementary record within a prescribed timeline. However, these are matters that can only be dealt with on the basis of appropriate applications as provided under the Rules of this Court. 23.In our view, the matter properly before us is, essentially, a fairly straight forward application seeking two orders: stay of proceedings in ELC Miscellaneous Application No. E083 of 2022 and orders of contempt against the respondent for allegedly disobeying orders of this Court issued on 13th December 2013. 24.With respect to the application for stay of proceedings, the applicant avers that it has an arguable appeal which will be rendered nugatory should the orders of stay of proceedings not be granted. The applicant identifies two grounds that it intends to argue on appeal. We note from the memorandum of appeal on record dated 26th June, 2023 that one of the issues that the applicant intends to raise on appeal is whether the ELC had jurisdiction to enter judgment for Kshs 41,289,401.80 within an Advocate/Client Bill of Costs on the basis of an alleged fee agreement in the absence of taxation and/or a substantive suit, and in circumstances where the validity and legality of the impugned advocate–client fee agreement were disputed under the Advocates Act and the Trustees (Perpetual Succession) Act. We are satisfied that this is an arguable issue, one that is not frivolous, bearing in mind that even one arguable issue is sufficient to satisfy the principles set out in Stanley Kang’ethe Kinyanjui vs Tony Ketter & 5 others [2013] eKLR. 25.On the nugatory aspect, the applicant avers that even though the decretal sum has been deposited into a joint escrow account pursuant to a consent order dated 13th December 2023, the respondent has initiated garnishee proceedings against other accounts before the ELC, and that continued execution may result in attachment and dissipation of funds from these accounts, which it may not be able to recover from the respondent. 26.On his part, the respondent argues that the escrow account was not opened in accordance with the consent order issued on 13th December 2023; and so the orders issued therein had lapsed, and there is therefore no subsisting order of stay. He further asserts that he is financially able to refund the decretal amount should the appeal succeed. 27.It is settled law that whether or not an appeal will be rendered nugatory is dependent on whether what is sought to be stayed, if allowed to happen, is reversible, or if not reversible, whether damages would reasonably compensate the aggrieved party-see Stanley Kang’ethe Kinyanjui vs Tony Ketter & 5 others (supra). 28.In this case, the applicant seeks to stay proceedings in which the respondent is pursuing garnishee proceedings to recover the judgment debt awarded in the ruling of the ELC dated 31st May 2023. As has been recognised by our courts, stay of proceedings is a serious, grave and fundamental interruption of the right of a party to conduct his litigation on the basis of the substantive merit of his case. As a general rule, therefore, a stay of proceedings should not be granted unless the proceedings, beyond all reasonable doubt, ought not to be allowed to continue- see Meta Platforms, Inc & another v Motaung & another; Kenya National Humans Rights Equality Commission & 9 others (Interested Parties) (Civil Appeal (Application) E232 of 2023) [2023] KECA 996 (KLR). As the Court in the above case held:“A balance must be maintained between the right of a party to have the substantive suit heard timeously and the desire of his opponent to be given adequate time to prosecute his appeal. In granting an order of stay of proceedings, the court should be guided primarily by the necessity to be fair to both parties.” 29.The Court set out the principles to be considered in determining whether or not to grant an order of stay of proceedings, among them being: that a stay of proceedings may be granted only if there is a pending appeal, which is, prima facie, valid in law; the pending appeal must be competent and arguable on its merits; where the subject matter will be destroyed, damaged or annihilated before the matter is disposed of, an appellate court will grant stay; and stay of proceedings will be granted where to do otherwise will tend to render any order of the appellate court nugatory. 30.In this case, what the applicant seeks to stay are execution proceedings by way of an application for garnishee orders against its accounts. We have already found that the applicant has an arguable appeal, which is not frivolous. As noted earlier in this ruling, the applicant and the respondent entered into a consent, adopted as an order of the Court on 13th December 2023, for the deposit of the decretal amount in a joint account. The account was opened by counsel for the parties, and the said amount deposited therein by the NLC, albeit eight months late, with no demur, it would appear, from the respondent. 31.The account is under the control of counsel for the parties herein. In the circumstances, can the respondent properly proceed with garnishee proceedings before the ELC against other accounts held by the applicant? We think not. Should the appeal succeed while the respondent has attached other funds belonging to the applicant while still a signatory to the funds in the escrow account, the apprehensions by the applicant that it may not be able to recover the funds is well founded. Taking all the circumstances of this case into consideration and bearing in mind the necessity to be fair to both parties, we are satisfied that the prayer for stay of proceedings in the ELC is merited. 32.Regarding the prayer for orders of contempt against the respondent, we are not persuaded that the applicant has laid a sufficient basis for such an order before us. The application is predicated on a consent order entered into between the parties, which each of them, despite having acted in accordance with its terms, has chosen to interpret in the manner that suits their interests. There being no appropriate application on the basis of which the Court can interrogate the terms of the consent order and whether or not there was breach thereof, we decline the invitation to issue the orders sought by the applicant. 33.In the end, we find the application dated 25th July 2025 merited with regard to the prayer seeking stay of proceedings in Milimani ELC Misc. Application No. E083 of 2022, pending the hearing and determination of the applicant’s appeal. 34.The costs of this application shall abide the outcome of the intended appeal. 35.In closing, having noted the very contentious and acrimonious nature of the dispute between the parties emanating from an advocate-client relationship going back a decade and more, we direct that the appeal be listed for hearing on priority basis. DATED AND DELIVERED AT NAIROBI THIS 10TH DAY OF JULY 2026.JAMILA MOHAMMED…………………………………JUDGE OF APPEALMUMBI NGUGI…………………………………JUDGE OF APPEALF. TUIYOTT…………………………………JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR