Background and Introduction
1. The Court is invited to determine two (2) applications. The first is the one dated 10th June 2025, seeking a stay of execution and injunctive orders against the judgment of this Court, dated 22nd April 2025. This application was filed by the firm of ADUDA & COMPANY ADVOCATES. The second application is the one dated 23rd June 2025, which seeks a review this Court’s Orders dated 11th June, 2025. The application further seeks injunctive orders as well as a stay of execution just like the first application. This application was filed by the firm of NCHOGU, OMWANZA & NYASIMI ADVOCATES.
2. In response to the second application, the respondent (hereinafter the Bank) raised a preliminary objection dated 2nd July 2025. The objection challenges the competence of the application on the ground that it was filed by advocates who are not properly on record, having failed to comply with the requirements of Order 9 Rule 9(a) and (b) of the Civil Procedure Rules.
3. Given the urgency of the matter owing to the impending auction, the Court proceeded to hear the parties through oral submissions, which I have carefully considered alongside the evidence on record and the legal authorities cited.
Analysis and Determination
i. On the Preliminary Objection
4. It is not in dispute that this Court rendered a judgment on 22nd April 2025. The procedure for effecting a change of advocates after judgment has been entered is governed by Order 9 Rule 9 of the Civil Procedure Rules, which provides that:
“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—
(a) upon an application with notice to all parties; or
(b) upon consent filed between the outgoing advocate and the proposed incoming advocate or party intending to act in person as the case may be.”
5. The rationale behind this rule is to safeguard the professional rights and interests of an outgoing advocate. It ensures that an advocate who has conducted the matter up to judgment is not removed without notice or consent, thereby protecting any accrued rights to legal fees. This principle was aptly articulated in S.K. Tarwadi v Veronica Muehlmann [2019] eKLR.
6. The drafters of the Civil Procedure Rules were equally cognizant of situations where an outgoing advocate might unreasonably withhold consent due to fee disputes, grievances, or tactical reasons. Consequently, Order 9 Rule 9 offers an alternative route of filing a formal application for leave of court so as to ensure litigants are not unfairly trapped in representation they no longer wish to maintain.
7. In Stephen Mbogo Karuiki v K-Rep Bank Ltd [2018] KECA 558 (KLR) , the Court of Appeal upheld the decision of this Court (Otieno, J) in which it was held that:
“To this court the orders of 15.3.2017 had the effect of terminating the suit and therefore for Mr. Gathuku to come on record properly he ought to have complied with the provisions of Order 9 rule 9. That was never complied with. The consequences is that the application dated 29.3.2017 is improperly before the court and I order it struck out with costs.”
8. The Court of Appeal concurred with this finding, observing that:
“It is not in dispute that M/s Joseph Gathuku & Company Advocates neither filed the application nor obtained the consent envisioned in the aforementioned provision. Equally, such change had not been sanctioned by an order of the Court. Therefore, we concur with the learned Judge that the review application filed by the said advocates was not properly before the court”.
9. This position has been consistently affirmed. In Lalji Bhimji Shangani Builders & Contractors v City Council of Nairobi [2012] eKLR , Odunga J (as he then was) stated:
“A party who without any justification decides not to follow the procedure laid down for orderly conduct of litigation cannot be allowed to fall back on the said objective for assistance and where no explanation has been offered for failure to observe the rules of procedure the court may well be entitled to conclude that failure to comply therewith was deliberate.”
10. A similar stance was taken in Eliud Wanjau Mureithi t/a The Job Aqua Drillers v Geoffrey Kilosa Mulwa [2021] KEHC 9731 (KLR).
11. In the present case, the applicants made no attempt to explain their failure to obtain leave of court or to secure consent from the outgoing advocates. The Notice of Appointment was thus filed irregularly, and their silence on this issue lends credibility to the possibility that the breach was deliberate. In the circumstances, the Court has no option but to strike out the application dated 23rd June 2025 for being incompetent, with costs.
On the Application Dated 10th June 2025
12. This application was filed by the Firm of ADUDA & COMPANY ADVOCATES, who technically remain on record as the advocates for the applicants. The application seeks stay of execution and injunctive relief on grounds that an appeal has been filed raising substantial legal and factual issues. The applicants take issue with a redemption notice dated 29th April 2025 issued under Rule 15(d) of the Auctioneers Rules, 1997. It is argued that the notice purports to allow 45 days for redemption but contravenes Rule 15(e) by also fixing an auction date before the expiry of that period.
13. The applicants further contend that the auction is based on an outdated valuation report dated 21st July 2016, which does not reflect the current market value as required by Sections 97(2) and 98(5) of the Land Act, No. 6 of 2012. I also note that the applicants have offered to deposit Kshs. 1,700,000/= as security.
14. The Bank opposed the application through a replying affidavit sworn on 26th June 2025. It contends that the application is an abuse of process as a similar application for stay is pending before the Court of Appeal in CACA No. E466 of 2025.
15. The Bank further submits that no substantial loss would be suffered by the applicants that cannot be compensated in damages. It also argues that the security offered is disproportionately low relative to the outstanding debt. Leave had been granted to the Bank to file a supplementary valuation report, though the same had not been filed by the time of this ruling.
16. The question raised by the Bank concerning the concurrent pursuit of proceedings before this Court and the Court of Appeal constitutes a jurisdictional issue that must be addressed at the outset, as it directly implicates this Court’s competence to adjudicate the application.
17. It is undisputed that the applicants have filed both a Notice of Appeal and an application for stay under Rule 5(2)(b) of the Court of Appeal Rules in CACA No. E466 of 2025. Directions on that application were communicated via email to counsel on 24th June 2025. The question now is whether this Court retains jurisdiction to entertain a parallel application for stay.
18. Counsel for the applicants has invoked Order 42 Rule 6 of the Civil Procedure Rules in support of the argument that a litigant may pursue applications for stay of execution concurrently before this Court and the Court of Appeal. While the rule does indeed confer jurisdiction upon this Court to entertain such an application, it must be read harmoniously with the jurisprudence on the proper sequencing and exercise of jurisdiction between superior courts.
19. The critical question, therefore, is not whether both courts possess jurisdiction in the abstract, but whether both may be properly seized of the same issue at the same time. In Attorney General v Kazungu [2023] KECA 498 (KLR), the Court of Appeal offered clarity on when it becomes seized of a matter. It was held that …the court becomes seized of the matter only after the notice of appeal has been filed…”. This pronouncement clarifies a point of procedure namely, that the filing of a notice of appeal is what vests the Court of Appeal with jurisdiction over a matter.
20. Once seized of the matter, the appellate court assumes supervisory control over the appeal proceedings, including any applications incidental to the appeal, such as one for stay of execution. This position was reaffirmed in Equity Bank Ltd v West Link Mbo Ltd [2013] eKLR, and Stanley Kang’ethe Kinyanjui v Tony Ketter & 5 Others [2013] eKLR.
21. Addressing the same issue in Car House Ltd & Charles Muthini Mwasya v Erastus Kavita Musyoka [2022] KEHC 1340 (KLR), Odunga J (as he then was) cautioned that the Civil Procedure Rules do not contemplate a scenario where an application for stay remains pending before the trial court while a similar application is pursued before the appellate court. The Learned Judge observed:
“The question that this Court is being called upon to determine and which the authorities above do not deal with is whether a party who has filed an application before the Court whose decision is sought to be appealed from can abandon that application midstream and move to the appellate court to consider a similar application. In my view, that determination depends on the court’s interpretation of the phrase “whether the application for such stay shall have been granted or refused by the court appealed from”. In other words, for the appellate court to entertain the application in its original jurisdiction, the Applicant must show that either he had not made an application before the trial court or that he did make such an application and the same was granted with or without conditions or refused. In my respectful view, the Rules do not contemplate a situation where such an application is still pending and yet a similar application is made before the appellate court. This my view that the above provisions, while providing for an exception to the res judicata doctrine, does not open the window for parties to abuse the judicial process or the process of the court.
To adopt a procedure where a party files an application and abandons it midstream and moves an appellate court for the same relief without withdrawing the earlier application may not only lead to an embarrassment but may be considered as playing lottery with judicial process”.
22. The observations made by Odunga J, though rendered in the context of concurrent proceedings between this Court and a subordinate trial court, are equally applicable to situations involving this Court and the Court of Appeal. The underlying principle is the same: that judicial proceedings must be conducted in a manner that upholds procedural orderliness and prevents forum shopping or duplication of effort.
23. Permitting a party to simultaneously pursue identical reliefs before different courts undermines the hierarchical structure of the judiciary, creates the risk of conflicting decisions, and offends the sub judice doctrine under Section 6 of the Civil Procedure Act. Thus, the Learned Judge’s sentiments resonate with equal force in the present context and reinforce the imperative that once a higher court is seized of a matter, the lower court must defer to its jurisdiction.
24. This principle was echoed in African Banking Corporation Limited v Intex Construction Limited Commercial Case No. 282 of 2017. Thande J held as follows;
“Whereas it is clear from the cited legal provisions that this Court and the Court of Appeal have concurrent jurisdiction to grant stay of execution, that jurisdiction cannot be exercised at the same time. A party who has a pending application for stay in the High Court must await its outcome before moving to the Court of Appeal to seek similar orders.
This was the holding in Gathara Chuchu & 473 Others v Gititu Coffee Growers Co-operative Society & Another [2008] eKLR where Nambuye, J (as she then was) stated and I concur:
In this court’s construction of the Court of Appeal case law on concurrent jurisdiction of the superior court and the Court of Appeal, on the granting of the relief of stay pending appeal, it does not mean that both courts can become seized of the matter, handle it simultaneously and rule on it differently at the same time. It simply means that both courts are competent to grant the relief in their respective jurisdictions.
And as per the provisions of Order 41 rule 4(1) Civil Procedure Rules, if the superior Court is the one seized of the matter it can grant the stay of execution pending hearing and determination of the appeal. However, where the superior court declines to grant the same or gives un favourable terms, the aggrieved party can move to the Court of Appeal and seek the same relief”.
25. Accordingly, I find that the applicants, having already invoked the jurisdiction of the Court of Appeal in CACA No. E466 of 2025, have effectively ousted the jurisdiction of this Court over the same subject matter. Once the appellate court is properly seized of an application for stay, especially where directions have been issued, this Court must exercise restraint and defer to the superior court in accordance with the hierarchical structure of our judicial system.
26. Entertaining a parallel application before this Court would not only offend the principle of judicial comity but also risk duplicity and the possibility of conflicting outcomes. The present application is therefore premature, procedurally improper, and amounts to an abuse of the court process.
Disposition
i. The Preliminary Objection dated 2nd July 2025 is upheld. The application dated 23rd June 2025 is struck out with costs for having been filed by advocates not properly on record in contravention of Order 9 Rule 9 of the Civil Procedure Rules.
ii. The application dated 10th June 2025 is struck out with costs for being an abuse of the court process, the same issue having been placed before the Court of Appeal which is already seized of the matter.
It is so ordered.
DATED, SIGNED AND DELIVERED IN NAIROBI
THIS 7TH DAY OF JULY 2025.
F. MUGAMBI
JUDGE
1. The Court is invited to determine two (2) applications. The first is the one dated 10th June 2025, seeking a stay of execution and injunctive orders against the judgment of this Court, dated 22nd April 2025. This application was filed by the firm of ADUDA & COMPANY ADVOCATES. The second application is the one dated 23rd June 2025, which seeks a review this Court’s Orders dated 11th June, 2025. The application further seeks injunctive orders as well as a stay of execution just like the first application. This application was filed by the firm of NCHOGU, OMWANZA & NYASIMI ADVOCATES.
2. In response to the second application, the respondent (hereinafter the Bank) raised a preliminary objection dated 2nd July 2025. The objection challenges the competence of the application on the ground that it was filed by advocates who are not properly on record, having failed to comply with the requirements of Order 9 Rule 9(a) and (b) of the Civil Procedure Rules.
3. Given the urgency of the matter owing to the impending auction, the Court proceeded to hear the parties through oral submissions, which I have carefully considered alongside the evidence on record and the legal authorities cited.
Analysis and Determination
i. On the Preliminary Objection
4. It is not in dispute that this Court rendered a judgment on 22nd April 2025. The procedure for effecting a change of advocates after judgment has been entered is governed by Order 9 Rule 9 of the Civil Procedure Rules, which provides that:
“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—
(a) upon an application with notice to all parties; or
(b) upon consent filed between the outgoing advocate and the proposed incoming advocate or party intending to act in person as the case may be.”
5. The rationale behind this rule is to safeguard the professional rights and interests of an outgoing advocate. It ensures that an advocate who has conducted the matter up to judgment is not removed without notice or consent, thereby protecting any accrued rights to legal fees. This principle was aptly articulated in S.K. Tarwadi v Veronica Muehlmann [2019] eKLR.
6. The drafters of the Civil Procedure Rules were equally cognizant of situations where an outgoing advocate might unreasonably withhold consent due to fee disputes, grievances, or tactical reasons. Consequently, Order 9 Rule 9 offers an alternative route of filing a formal application for leave of court so as to ensure litigants are not unfairly trapped in representation they no longer wish to maintain.
7. In Stephen Mbogo Karuiki v K-Rep Bank Ltd [2018] KECA 558 (KLR) , the Court of Appeal upheld the decision of this Court (Otieno, J) in which it was held that:
“To this court the orders of 15.3.2017 had the effect of terminating the suit and therefore for Mr. Gathuku to come on record properly he ought to have complied with the provisions of Order 9 rule 9. That was never complied with. The consequences is that the application dated 29.3.2017 is improperly before the court and I order it struck out with costs.”
8. The Court of Appeal concurred with this finding, observing that:
“It is not in dispute that M/s Joseph Gathuku & Company Advocates neither filed the application nor obtained the consent envisioned in the aforementioned provision. Equally, such change had not been sanctioned by an order of the Court. Therefore, we concur with the learned Judge that the review application filed by the said advocates was not properly before the court”.
9. This position has been consistently affirmed. In Lalji Bhimji Shangani Builders & Contractors v City Council of Nairobi [2012] eKLR , Odunga J (as he then was) stated:
“A party who without any justification decides not to follow the procedure laid down for orderly conduct of litigation cannot be allowed to fall back on the said objective for assistance and where no explanation has been offered for failure to observe the rules of procedure the court may well be entitled to conclude that failure to comply therewith was deliberate.”
10. A similar stance was taken in Eliud Wanjau Mureithi t/a The Job Aqua Drillers v Geoffrey Kilosa Mulwa [2021] KEHC 9731 (KLR).
11. In the present case, the applicants made no attempt to explain their failure to obtain leave of court or to secure consent from the outgoing advocates. The Notice of Appointment was thus filed irregularly, and their silence on this issue lends credibility to the possibility that the breach was deliberate. In the circumstances, the Court has no option but to strike out the application dated 23rd June 2025 for being incompetent, with costs.
On the Application Dated 10th June 2025
12. This application was filed by the Firm of ADUDA & COMPANY ADVOCATES, who technically remain on record as the advocates for the applicants. The application seeks stay of execution and injunctive relief on grounds that an appeal has been filed raising substantial legal and factual issues. The applicants take issue with a redemption notice dated 29th April 2025 issued under Rule 15(d) of the Auctioneers Rules, 1997. It is argued that the notice purports to allow 45 days for redemption but contravenes Rule 15(e) by also fixing an auction date before the expiry of that period.
13. The applicants further contend that the auction is based on an outdated valuation report dated 21st July 2016, which does not reflect the current market value as required by Sections 97(2) and 98(5) of the Land Act, No. 6 of 2012. I also note that the applicants have offered to deposit Kshs. 1,700,000/= as security.
14. The Bank opposed the application through a replying affidavit sworn on 26th June 2025. It contends that the application is an abuse of process as a similar application for stay is pending before the Court of Appeal in CACA No. E466 of 2025.
15. The Bank further submits that no substantial loss would be suffered by the applicants that cannot be compensated in damages. It also argues that the security offered is disproportionately low relative to the outstanding debt. Leave had been granted to the Bank to file a supplementary valuation report, though the same had not been filed by the time of this ruling.
16. The question raised by the Bank concerning the concurrent pursuit of proceedings before this Court and the Court of Appeal constitutes a jurisdictional issue that must be addressed at the outset, as it directly implicates this Court’s competence to adjudicate the application.
17. It is undisputed that the applicants have filed both a Notice of Appeal and an application for stay under Rule 5(2)(b) of the Court of Appeal Rules in CACA No. E466 of 2025. Directions on that application were communicated via email to counsel on 24th June 2025. The question now is whether this Court retains jurisdiction to entertain a parallel application for stay.
18. Counsel for the applicants has invoked Order 42 Rule 6 of the Civil Procedure Rules in support of the argument that a litigant may pursue applications for stay of execution concurrently before this Court and the Court of Appeal. While the rule does indeed confer jurisdiction upon this Court to entertain such an application, it must be read harmoniously with the jurisprudence on the proper sequencing and exercise of jurisdiction between superior courts.
19. The critical question, therefore, is not whether both courts possess jurisdiction in the abstract, but whether both may be properly seized of the same issue at the same time. In Attorney General v Kazungu [2023] KECA 498 (KLR), the Court of Appeal offered clarity on when it becomes seized of a matter. It was held that …the court becomes seized of the matter only after the notice of appeal has been filed…”. This pronouncement clarifies a point of procedure namely, that the filing of a notice of appeal is what vests the Court of Appeal with jurisdiction over a matter.
20. Once seized of the matter, the appellate court assumes supervisory control over the appeal proceedings, including any applications incidental to the appeal, such as one for stay of execution. This position was reaffirmed in Equity Bank Ltd v West Link Mbo Ltd [2013] eKLR, and Stanley Kang’ethe Kinyanjui v Tony Ketter & 5 Others [2013] eKLR.
21. Addressing the same issue in Car House Ltd & Charles Muthini Mwasya v Erastus Kavita Musyoka [2022] KEHC 1340 (KLR), Odunga J (as he then was) cautioned that the Civil Procedure Rules do not contemplate a scenario where an application for stay remains pending before the trial court while a similar application is pursued before the appellate court. The Learned Judge observed:
“The question that this Court is being called upon to determine and which the authorities above do not deal with is whether a party who has filed an application before the Court whose decision is sought to be appealed from can abandon that application midstream and move to the appellate court to consider a similar application. In my view, that determination depends on the court’s interpretation of the phrase “whether the application for such stay shall have been granted or refused by the court appealed from”. In other words, for the appellate court to entertain the application in its original jurisdiction, the Applicant must show that either he had not made an application before the trial court or that he did make such an application and the same was granted with or without conditions or refused. In my respectful view, the Rules do not contemplate a situation where such an application is still pending and yet a similar application is made before the appellate court. This my view that the above provisions, while providing for an exception to the res judicata doctrine, does not open the window for parties to abuse the judicial process or the process of the court.
To adopt a procedure where a party files an application and abandons it midstream and moves an appellate court for the same relief without withdrawing the earlier application may not only lead to an embarrassment but may be considered as playing lottery with judicial process”.
22. The observations made by Odunga J, though rendered in the context of concurrent proceedings between this Court and a subordinate trial court, are equally applicable to situations involving this Court and the Court of Appeal. The underlying principle is the same: that judicial proceedings must be conducted in a manner that upholds procedural orderliness and prevents forum shopping or duplication of effort.
23. Permitting a party to simultaneously pursue identical reliefs before different courts undermines the hierarchical structure of the judiciary, creates the risk of conflicting decisions, and offends the sub judice doctrine under Section 6 of the Civil Procedure Act. Thus, the Learned Judge’s sentiments resonate with equal force in the present context and reinforce the imperative that once a higher court is seized of a matter, the lower court must defer to its jurisdiction.
24. This principle was echoed in African Banking Corporation Limited v Intex Construction Limited Commercial Case No. 282 of 2017. Thande J held as follows;
“Whereas it is clear from the cited legal provisions that this Court and the Court of Appeal have concurrent jurisdiction to grant stay of execution, that jurisdiction cannot be exercised at the same time. A party who has a pending application for stay in the High Court must await its outcome before moving to the Court of Appeal to seek similar orders.
This was the holding in Gathara Chuchu & 473 Others v Gititu Coffee Growers Co-operative Society & Another [2008] eKLR where Nambuye, J (as she then was) stated and I concur:
In this court’s construction of the Court of Appeal case law on concurrent jurisdiction of the superior court and the Court of Appeal, on the granting of the relief of stay pending appeal, it does not mean that both courts can become seized of the matter, handle it simultaneously and rule on it differently at the same time. It simply means that both courts are competent to grant the relief in their respective jurisdictions.
And as per the provisions of Order 41 rule 4(1) Civil Procedure Rules, if the superior Court is the one seized of the matter it can grant the stay of execution pending hearing and determination of the appeal. However, where the superior court declines to grant the same or gives un favourable terms, the aggrieved party can move to the Court of Appeal and seek the same relief”.
25. Accordingly, I find that the applicants, having already invoked the jurisdiction of the Court of Appeal in CACA No. E466 of 2025, have effectively ousted the jurisdiction of this Court over the same subject matter. Once the appellate court is properly seized of an application for stay, especially where directions have been issued, this Court must exercise restraint and defer to the superior court in accordance with the hierarchical structure of our judicial system.
26. Entertaining a parallel application before this Court would not only offend the principle of judicial comity but also risk duplicity and the possibility of conflicting outcomes. The present application is therefore premature, procedurally improper, and amounts to an abuse of the court process.
Disposition
i. The Preliminary Objection dated 2nd July 2025 is upheld. The application dated 23rd June 2025 is struck out with costs for having been filed by advocates not properly on record in contravention of Order 9 Rule 9 of the Civil Procedure Rules.
ii. The application dated 10th June 2025 is struck out with costs for being an abuse of the court process, the same issue having been placed before the Court of Appeal which is already seized of the matter.
It is so ordered.
DATED, SIGNED AND DELIVERED IN NAIROBI
THIS 7TH DAY OF JULY 2025.
F. MUGAMBI
JUDGE