REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
COMMERCIAL & TAX DIVISION
MISCELLANEOUS CIVIL APPLICATION NO. E626 OF 2021
LUBULLELAH & ASSOCIATES ADVOCATES….…….ADVOCATE/ RESPONDENT
VERSUS
ISAAC’S INVESTMENTS COMPANY LTD ………... CLIENT/APPLICANT
RULING
1. Before this Court for determination is the applicant’s Notice of Motion brought under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 43 Rule 1(3) and Order 51 Rule 1 of the Civil Procedure Rules, 2010. The applicant seeks the following orders:
(i) Spent;
(ii) That this Honourable Court be pleased to grant the applicant leave to appeal against the ruling delivered by Hon Lady Justice Dorah Chepkwony on 28th April, 2023;
(iii) That the Notice of Appeal dated 2nd May, 2023 be deemed as properly filed and on record;
(iv) Spent;
(v) That there be a stay of execution of the ruling delivered against the respondent/applicant on 28th April, 2023 pending the hearing and determination of the respondent/applicant’s intended appeal;
(vi) That the Court be pleased to grant the orders sought subject to any condition as the Court may deem just; and
(vii) The costs of this application are provided.
2. The application is predicated on the grounds on the face of it and the supporting affidavit sworn by Ali M. Isaac on 4th May, 2023. The applicant averred that the ruling of 28th April, 2023 was delivered in its absence and it was not able to seek for stay of execution of the said ruling. That the applicant is aggrieved with the ruling and intends to appeal against it and it has filed a Notice of Appeal dated 2nd May, 2023. It was averred that the appeal has high chances of success and if orders for stay of execution are not granted, the intended appeal will be rendered nugatory. The applicant stated that it had paid a sum of Kshs. 1.5 Million to the respondent and it is ready to forego the same as security. The applicant further stated that it is apprehensive that the respondent will proceed to execute the order arising from the ruling of 28th April, 2023. The applicant expressed its willingness to comply with such conditions and terms as may be determined by the Court.
3. The application was opposed through a replying affidavit sworn by Eugene Lubale Lubulellah sworn on 15th May, 2023, in which he deposed that the applicant ought to seek leave to appeal before the filing of the Notice of Appeal, that the decision of granting leave is a discretionary remedy of the Court, and that the applicant ought to satisfy to the Court the prospects of the success of the appeal. Counsel averred that due to failure to seek leave to appeal at the entry of the judgment, the instant application ought to be made at the Court to which the intended appeal is to be filed.
4. He also averred that the applicant has failed to demonstrate that it will suffer substantial loss if the orders for stay of execution are not issued. That there is no factual basis that the decree holder will not be in a position to refund the money in the event that the appeal succeeds. Mr. Lubullelah deposed that the applicant has failed to provide security for the due performance of the decree. Counsel argued that as a successful party, the Advocate/respondent is entitled to the fruits of the judgment.
5. He contended that the prayers herein cannot be issued as the Advocate’s Act does not contemplate a stay of execution or proceedings of any process commenced thereunder. He urged this Court to dismiss the application dated 4th May, 2023.
6. As per the Court’s directions, the application was canvassed by way of written submissions and as the record reflects, the applicant/client filed submissions dated 14th June, 2023, whereas those for the Advocate/respondent are dated 22nd June, 2023
Applicant/client’s submissions
7. Mr. Musyoki, learned Counsel for the applicant submitted that the principles that guide the exercise of the Court’s exercise of discretion in deciding whether or not to grant orders for stay of execution are provided for in Order 42 Rule 6(2) of the Civil Procedure Rules, 2010. He stated that the applicant has satisfied the conditions set out in Order 42 Rule 6(2) of the Civil Procedure Rules, 2010. He urged that the appeal is arguable and merits serious judicial consideration. He stated that if this Court declines to grant stay of execution, and the intended appeal succeeds, the applicant will suffer substantial loss. Counsel placed reliance on the case of James Wangalwa & another v Agnes Naliaka Cheseto [2012] eKLR, where the Court stated that substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.
8. Counsel contended that the applicant will not survive the taxed costs of Kshs. 4,475,000/= as it is in the process of insolvency.
9. On the issue of leave to appeal, the applicant’s Counsel argued that a ruling was slated for 24th February, 2023 when the Hon. Judge indicated that the ruling was not ready and that it would be delivered when ready. Counsel stated that no notice was issued for the ruling delivered on 28th April, 2023, and due to the absence of the Counsel for the applicant or its representative at the time of the delivery of the said ruling, which necessitated the filing of the instant application. Counsel argued that shutting out the applicant from the seat of justice empty handed in the wake of the existence of the provisions of Section 7 of the Appellate Jurisdiction Act, would be tantamount to rendering justice on technicalities in contravention of Article 159(2)(d) of the Constitution of Kenya.
10. Counsel submitted that despite the Court having the discretion to determine the security to be paid, it should not order payment of security in the instant matter. He relied on the case of Bella Vista Restaurant Mombasa Limited v Kenya Revenue Authority MSA Pet. No. 44 of 2014 [2016] eKLR, where the Court recognized the financial difficulties of the petitioner and refused to order security, because security must be backed by financial arrangements which would have led to the closure of the petitioner’s business given the huge tax assessment.
11. In conclusion of his arguments, Counsel urged this Court to find that the intended appeal is arguable and not frivolous, and it would be unfair and unjust to shut out the applicant from pursuing the intended appeal.
Respondent/Advocate’s submissions.
12. Mr. Lubullelah, learned Counsel for the respondent submitted that as per Rule 11 of the Advocates Remuneration Order as read with Section 75 of the Civil Procedure Act, and Order 43(2) of the Civil Procedure Rules, 2010, an appeal is not a matter of right and for any intended appeal, leave must be sought from the Court before the filing of a Notice of Appeal. He cited the Court of Appeal decision in the case of Macharia t/a Macharia Company Advocates vs Mwangi & another [2002)] 2KLR 391, where the Court held that granting or refusing to grant an application for leave to appeal is a matter within the discretion of the Court. That the Court will refuse to grant leave if it is satisfied that the applicant has no realistic prospects of success on appeal, or does not raise any issue of public interest or a novel point requiring clarification.
13. Counsel argued that the applicant failed to attach a draft Memorandum of Appeal to its application, thus it has failed to demonstrate it has realistic grounds and prospects of success in the intended appeal. He contended that the prayer for leave to appeal is incompetent as there are no specific findings or issues upon which leave to appeal is sought.
14. Counsel submitted that the applicant has failed to demonstrate that it will suffer substantial loss if stay of execution is not granted and since the judgment is a money decree, the applicant ought to demonstrate to the Court that the respondent will not be in a position to reimburse or pay the money, if stay of execution is granted and if the appeal succeeds. He cited the case of Meteine Ole Kilelu & 10 others v Moses K. Nailole Civil Appeal No. 340 of 2018, where the Court held that where the decree appealed against is a monetary decree, the applicant has to show that once execution is done if this Court does not grant the application, the applicant may never get back its money if its appeal succeeds or that the decretal sum is so large vis a vis the financial status or business of the applicant, that the execution would in itself ruin its business or threaten its very existence.
15. Mr. Lubullelah argued that the offer for security must come from the party seeking stay of execution of the judgment and the same ought not to be inferred or implied or left to the Court. That the failure of the applicant to demonstrate willingness to provide security renders the application for stay of execution to be without merit. He urged that the Court should not proceed to hold that the decree holder should be denied the right to enjoy the fruits of its judgment. He contended that it is unjust for the decree holder to be kept away from its money. He urged this Court to dismiss the application dated 4th May, 2023.
ANALYSIS AND DETERMINATION.
16. I have given due consideration to the application, the supporting affidavit, the replying affidavit as well as the submissions filed and highlighted by Counsel for the parties. The issues for determination are-
i. Whether stay of execution pending appeal should be granted; and
ii. Whether leave to appeal should be granted.
17. Order 42 Rule 6(2) of the Civil Procedure Rules, 2010 prescribes that an applicant seeking an order for stay of execution should satisfy the Court that:
i. Substantial loss may result to him unless the order is made;
ii. That the application has been made without unreasonable delay; and
iii. The applicant has given such security as the Court orders for the due performance of such decree or order as may ultimately be binding on him.
18. This Court notes that the applicant had previously filed a Reference seeking to set aside the decision of the Taxing Master delivered on 5th May, 2022. Its argument was that the Taxing Master erred in subjecting taxation to Schedule 6A paragraph 1(b) of the Advocates Remuneration Order, 2014 as opposed to Schedule 6A paragraph 1(L) of the Advocates Remuneration Order, 2014. Vide the Court ruling of 28th April, 2023, the Court found that the applicant had not demonstrated evidence to warrant it to set aside the Taxing Master’s decision, the Court proceeded to dismiss the application.
19. Subsequently, the Advocate sought for judgment to be entered against the applicant on the taxed amount. The Court allowed the Advocate’s application in Misc Civil Application No. 626 of 2021, and entered judgment in its favour in the sum of Kshs. 4,475,000/=, together with interest thereon at the rate of 14% per annum from 6th June, 2022 until payment is full.
20. It is the said ruling delivered that is the subject of the intended appeal, and which the applicant seeks to stay its execution. The impugned ruling was delivered on 28th April, 2023, with the application herein, dated 4th May, 2023 being filed on even date. It is thus apparent that there was no delay in bringing the instant application before Court.
21. On the issue of substantial loss, Counsel argued that if stay of execution is not granted, the respondent will proceed to execute the decretal amount, thus crippling the functioning of the plaintiff and rendering it insolvent.
22. I agree with the holding of the Court in James Wangalwa & another v Agnes Naliaka Cheseto (supra) that the applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the applicant as the successful party in the appeal, as that is what substantial loss would entail.
23. I find the applicant has demonstrated that indeed it will suffer substantial loss if the stay of execution is not granted, as its liquidity will be affected, which in turn will lead to it being declared insolvent, whereas this Court is in a position to grant orders that will leave the company solvent, and at the same time cushion the respondent while the appeal will be ongoing. It is noted that the respondent has not demonstrated that it is in a position to refund the amount of Kshs.4,475,00.00, if the same is paid to it.
24. On the third issue of deposit of security, the applicant urges this Court not to call for security in the instant application as the applicant is in financial constraints that will render it insolvent. The respondent averred that the applicant ought to suggest the security to be deposited for the due performance of the decree. Mr. Lubullelah argued that since the decree is a money decree, the applicant ought to furnish money as security and the same ought to be deposited in a joint interest earning account in the names of both Advocates.
25. I do agree with the proposition that in order to secure the interest of both the parties, the applicant ought to furnish security for the due performance of the decree.
26. The applicant in the instant application has stated it has an arguable appeal with high chances of success. On its part, the respondent averred that the instant application is frivolous, unmerited and brought to deny the respondent the enjoyment of the fruits of justice.
27. A perusal of the annexures filed by the applicant reveals that there is no Memorandum of Appeal filed to enable this Court to screen the grounds upon which the appeal is to be brought. The averment that the appeal is arguable remains a mere assertion with no evidence. The applicant has thus not demonstrated that it has an arguable appeal. In this Court’s view, the applicant is entitled to its right of appeal.
28. Rule 11 of the Advocates Remuneration Order makes provision for the procedure an aggrieved party must adopt if it intends to file an appeal from the decision of the High Court. It provides the following-
“(1) Should any party object to the decision of the taxing officer, he
may within fourteen days after the decision give notice in writing
to the taxing officer of the items of taxation to which he objects.
(2) The taxing officer shall forthwith record and forward to the objector the reasons for his decision on those items and the objector may within fourteen days from the receipt of the reasons apply to a judge by chamber summons, which shall be served on all the parties concerned, setting out the grounds of his objection.
(3) Any person aggrieved by the decision of the judge upon any objection referred to such judge under subsection (2) may, with the leave of the judge but not otherwise, appeal to the Court of Appeal.
(4) …………………………………………….......” (emphasis added).
29. The applicant complied with the Rules set out in Rule 11 and is now seeking leave of this Court to file an appeal. The applicant submitted that it stands to suffer substantial loss, if leave is not granted and it will be driven from the seat of justice. The respondent on the other hand has not demonstrated that it will suffer irreparable loss which cannot be compensated by an award of damages.
30. This Court being vested with the discretionary remedy to grant leave to appeal, thinks that denying the applicant the leave being sought is a means of barring the applicant from the seat of justice, and it will be condemned to pay the taxed amounts. It is therefore in the interest of justice to grant the applicant the leave sought so that the parties can ventilate the issues raised and resolve the matter on appeal on merits.
31. In the circumstances, this Court finds the Notice of Motion dated 4th May, 2023 is merited. The same is allowed in the following terms:
(i) The applicant is granted leave to file an appeal:
(ii) The Notice of Appeal dated 2nd May, 2023 is hereby deemed as being properly filed and on record;
(iii) The applicant is granted stay of execution of the ruling delivered against the respondent/applicant on 28th April, 2023 pending the hearing and determination of the appeal at the Court of Appeal on condition that the applicant deposits half the decretal amount into a joint interest earning account in the names of both Advocates within 30 days from today; and
(iv) Costs of the instant application shall abide in the appeal.
It is so ordered.
DATED, SIGNED and DELIVERED at NAIROBI on this 23rd day of February, 2024. Ruling delivered through Microsoft Teams Online
Platform.
NJOKI MWANGI
JUDGE
In the presence of:
Mr. J. Leakey for Mr. Kanjama SC for the judgment debtor/applicant
Mr. Lubullelah Eugene for the decree holder/respondent
Ms B. Wokabi – Court Assistant.
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
COMMERCIAL & TAX DIVISION
MISCELLANEOUS CIVIL APPLICATION NO. E626 OF 2021
LUBULLELAH & ASSOCIATES ADVOCATES….…….ADVOCATE/ RESPONDENT
VERSUS
ISAAC’S INVESTMENTS COMPANY LTD ………... CLIENT/APPLICANT
RULING
1. Before this Court for determination is the applicant’s Notice of Motion brought under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 43 Rule 1(3) and Order 51 Rule 1 of the Civil Procedure Rules, 2010. The applicant seeks the following orders:
(i) Spent;
(ii) That this Honourable Court be pleased to grant the applicant leave to appeal against the ruling delivered by Hon Lady Justice Dorah Chepkwony on 28th April, 2023;
(iii) That the Notice of Appeal dated 2nd May, 2023 be deemed as properly filed and on record;
(iv) Spent;
(v) That there be a stay of execution of the ruling delivered against the respondent/applicant on 28th April, 2023 pending the hearing and determination of the respondent/applicant’s intended appeal;
(vi) That the Court be pleased to grant the orders sought subject to any condition as the Court may deem just; and
(vii) The costs of this application are provided.
2. The application is predicated on the grounds on the face of it and the supporting affidavit sworn by Ali M. Isaac on 4th May, 2023. The applicant averred that the ruling of 28th April, 2023 was delivered in its absence and it was not able to seek for stay of execution of the said ruling. That the applicant is aggrieved with the ruling and intends to appeal against it and it has filed a Notice of Appeal dated 2nd May, 2023. It was averred that the appeal has high chances of success and if orders for stay of execution are not granted, the intended appeal will be rendered nugatory. The applicant stated that it had paid a sum of Kshs. 1.5 Million to the respondent and it is ready to forego the same as security. The applicant further stated that it is apprehensive that the respondent will proceed to execute the order arising from the ruling of 28th April, 2023. The applicant expressed its willingness to comply with such conditions and terms as may be determined by the Court.
3. The application was opposed through a replying affidavit sworn by Eugene Lubale Lubulellah sworn on 15th May, 2023, in which he deposed that the applicant ought to seek leave to appeal before the filing of the Notice of Appeal, that the decision of granting leave is a discretionary remedy of the Court, and that the applicant ought to satisfy to the Court the prospects of the success of the appeal. Counsel averred that due to failure to seek leave to appeal at the entry of the judgment, the instant application ought to be made at the Court to which the intended appeal is to be filed.
4. He also averred that the applicant has failed to demonstrate that it will suffer substantial loss if the orders for stay of execution are not issued. That there is no factual basis that the decree holder will not be in a position to refund the money in the event that the appeal succeeds. Mr. Lubullelah deposed that the applicant has failed to provide security for the due performance of the decree. Counsel argued that as a successful party, the Advocate/respondent is entitled to the fruits of the judgment.
5. He contended that the prayers herein cannot be issued as the Advocate’s Act does not contemplate a stay of execution or proceedings of any process commenced thereunder. He urged this Court to dismiss the application dated 4th May, 2023.
6. As per the Court’s directions, the application was canvassed by way of written submissions and as the record reflects, the applicant/client filed submissions dated 14th June, 2023, whereas those for the Advocate/respondent are dated 22nd June, 2023
Applicant/client’s submissions
7. Mr. Musyoki, learned Counsel for the applicant submitted that the principles that guide the exercise of the Court’s exercise of discretion in deciding whether or not to grant orders for stay of execution are provided for in Order 42 Rule 6(2) of the Civil Procedure Rules, 2010. He stated that the applicant has satisfied the conditions set out in Order 42 Rule 6(2) of the Civil Procedure Rules, 2010. He urged that the appeal is arguable and merits serious judicial consideration. He stated that if this Court declines to grant stay of execution, and the intended appeal succeeds, the applicant will suffer substantial loss. Counsel placed reliance on the case of James Wangalwa & another v Agnes Naliaka Cheseto [2012] eKLR, where the Court stated that substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.
8. Counsel contended that the applicant will not survive the taxed costs of Kshs. 4,475,000/= as it is in the process of insolvency.
9. On the issue of leave to appeal, the applicant’s Counsel argued that a ruling was slated for 24th February, 2023 when the Hon. Judge indicated that the ruling was not ready and that it would be delivered when ready. Counsel stated that no notice was issued for the ruling delivered on 28th April, 2023, and due to the absence of the Counsel for the applicant or its representative at the time of the delivery of the said ruling, which necessitated the filing of the instant application. Counsel argued that shutting out the applicant from the seat of justice empty handed in the wake of the existence of the provisions of Section 7 of the Appellate Jurisdiction Act, would be tantamount to rendering justice on technicalities in contravention of Article 159(2)(d) of the Constitution of Kenya.
10. Counsel submitted that despite the Court having the discretion to determine the security to be paid, it should not order payment of security in the instant matter. He relied on the case of Bella Vista Restaurant Mombasa Limited v Kenya Revenue Authority MSA Pet. No. 44 of 2014 [2016] eKLR, where the Court recognized the financial difficulties of the petitioner and refused to order security, because security must be backed by financial arrangements which would have led to the closure of the petitioner’s business given the huge tax assessment.
11. In conclusion of his arguments, Counsel urged this Court to find that the intended appeal is arguable and not frivolous, and it would be unfair and unjust to shut out the applicant from pursuing the intended appeal.
Respondent/Advocate’s submissions.
12. Mr. Lubullelah, learned Counsel for the respondent submitted that as per Rule 11 of the Advocates Remuneration Order as read with Section 75 of the Civil Procedure Act, and Order 43(2) of the Civil Procedure Rules, 2010, an appeal is not a matter of right and for any intended appeal, leave must be sought from the Court before the filing of a Notice of Appeal. He cited the Court of Appeal decision in the case of Macharia t/a Macharia Company Advocates vs Mwangi & another [2002)] 2KLR 391, where the Court held that granting or refusing to grant an application for leave to appeal is a matter within the discretion of the Court. That the Court will refuse to grant leave if it is satisfied that the applicant has no realistic prospects of success on appeal, or does not raise any issue of public interest or a novel point requiring clarification.
13. Counsel argued that the applicant failed to attach a draft Memorandum of Appeal to its application, thus it has failed to demonstrate it has realistic grounds and prospects of success in the intended appeal. He contended that the prayer for leave to appeal is incompetent as there are no specific findings or issues upon which leave to appeal is sought.
14. Counsel submitted that the applicant has failed to demonstrate that it will suffer substantial loss if stay of execution is not granted and since the judgment is a money decree, the applicant ought to demonstrate to the Court that the respondent will not be in a position to reimburse or pay the money, if stay of execution is granted and if the appeal succeeds. He cited the case of Meteine Ole Kilelu & 10 others v Moses K. Nailole Civil Appeal No. 340 of 2018, where the Court held that where the decree appealed against is a monetary decree, the applicant has to show that once execution is done if this Court does not grant the application, the applicant may never get back its money if its appeal succeeds or that the decretal sum is so large vis a vis the financial status or business of the applicant, that the execution would in itself ruin its business or threaten its very existence.
15. Mr. Lubullelah argued that the offer for security must come from the party seeking stay of execution of the judgment and the same ought not to be inferred or implied or left to the Court. That the failure of the applicant to demonstrate willingness to provide security renders the application for stay of execution to be without merit. He urged that the Court should not proceed to hold that the decree holder should be denied the right to enjoy the fruits of its judgment. He contended that it is unjust for the decree holder to be kept away from its money. He urged this Court to dismiss the application dated 4th May, 2023.
ANALYSIS AND DETERMINATION.
16. I have given due consideration to the application, the supporting affidavit, the replying affidavit as well as the submissions filed and highlighted by Counsel for the parties. The issues for determination are-
i. Whether stay of execution pending appeal should be granted; and
ii. Whether leave to appeal should be granted.
17. Order 42 Rule 6(2) of the Civil Procedure Rules, 2010 prescribes that an applicant seeking an order for stay of execution should satisfy the Court that:
i. Substantial loss may result to him unless the order is made;
ii. That the application has been made without unreasonable delay; and
iii. The applicant has given such security as the Court orders for the due performance of such decree or order as may ultimately be binding on him.
18. This Court notes that the applicant had previously filed a Reference seeking to set aside the decision of the Taxing Master delivered on 5th May, 2022. Its argument was that the Taxing Master erred in subjecting taxation to Schedule 6A paragraph 1(b) of the Advocates Remuneration Order, 2014 as opposed to Schedule 6A paragraph 1(L) of the Advocates Remuneration Order, 2014. Vide the Court ruling of 28th April, 2023, the Court found that the applicant had not demonstrated evidence to warrant it to set aside the Taxing Master’s decision, the Court proceeded to dismiss the application.
19. Subsequently, the Advocate sought for judgment to be entered against the applicant on the taxed amount. The Court allowed the Advocate’s application in Misc Civil Application No. 626 of 2021, and entered judgment in its favour in the sum of Kshs. 4,475,000/=, together with interest thereon at the rate of 14% per annum from 6th June, 2022 until payment is full.
20. It is the said ruling delivered that is the subject of the intended appeal, and which the applicant seeks to stay its execution. The impugned ruling was delivered on 28th April, 2023, with the application herein, dated 4th May, 2023 being filed on even date. It is thus apparent that there was no delay in bringing the instant application before Court.
21. On the issue of substantial loss, Counsel argued that if stay of execution is not granted, the respondent will proceed to execute the decretal amount, thus crippling the functioning of the plaintiff and rendering it insolvent.
22. I agree with the holding of the Court in James Wangalwa & another v Agnes Naliaka Cheseto (supra) that the applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the applicant as the successful party in the appeal, as that is what substantial loss would entail.
23. I find the applicant has demonstrated that indeed it will suffer substantial loss if the stay of execution is not granted, as its liquidity will be affected, which in turn will lead to it being declared insolvent, whereas this Court is in a position to grant orders that will leave the company solvent, and at the same time cushion the respondent while the appeal will be ongoing. It is noted that the respondent has not demonstrated that it is in a position to refund the amount of Kshs.4,475,00.00, if the same is paid to it.
24. On the third issue of deposit of security, the applicant urges this Court not to call for security in the instant application as the applicant is in financial constraints that will render it insolvent. The respondent averred that the applicant ought to suggest the security to be deposited for the due performance of the decree. Mr. Lubullelah argued that since the decree is a money decree, the applicant ought to furnish money as security and the same ought to be deposited in a joint interest earning account in the names of both Advocates.
25. I do agree with the proposition that in order to secure the interest of both the parties, the applicant ought to furnish security for the due performance of the decree.
26. The applicant in the instant application has stated it has an arguable appeal with high chances of success. On its part, the respondent averred that the instant application is frivolous, unmerited and brought to deny the respondent the enjoyment of the fruits of justice.
27. A perusal of the annexures filed by the applicant reveals that there is no Memorandum of Appeal filed to enable this Court to screen the grounds upon which the appeal is to be brought. The averment that the appeal is arguable remains a mere assertion with no evidence. The applicant has thus not demonstrated that it has an arguable appeal. In this Court’s view, the applicant is entitled to its right of appeal.
28. Rule 11 of the Advocates Remuneration Order makes provision for the procedure an aggrieved party must adopt if it intends to file an appeal from the decision of the High Court. It provides the following-
“(1) Should any party object to the decision of the taxing officer, he
may within fourteen days after the decision give notice in writing
to the taxing officer of the items of taxation to which he objects.
(2) The taxing officer shall forthwith record and forward to the objector the reasons for his decision on those items and the objector may within fourteen days from the receipt of the reasons apply to a judge by chamber summons, which shall be served on all the parties concerned, setting out the grounds of his objection.
(3) Any person aggrieved by the decision of the judge upon any objection referred to such judge under subsection (2) may, with the leave of the judge but not otherwise, appeal to the Court of Appeal.
(4) …………………………………………….......” (emphasis added).
29. The applicant complied with the Rules set out in Rule 11 and is now seeking leave of this Court to file an appeal. The applicant submitted that it stands to suffer substantial loss, if leave is not granted and it will be driven from the seat of justice. The respondent on the other hand has not demonstrated that it will suffer irreparable loss which cannot be compensated by an award of damages.
30. This Court being vested with the discretionary remedy to grant leave to appeal, thinks that denying the applicant the leave being sought is a means of barring the applicant from the seat of justice, and it will be condemned to pay the taxed amounts. It is therefore in the interest of justice to grant the applicant the leave sought so that the parties can ventilate the issues raised and resolve the matter on appeal on merits.
31. In the circumstances, this Court finds the Notice of Motion dated 4th May, 2023 is merited. The same is allowed in the following terms:
(i) The applicant is granted leave to file an appeal:
(ii) The Notice of Appeal dated 2nd May, 2023 is hereby deemed as being properly filed and on record;
(iii) The applicant is granted stay of execution of the ruling delivered against the respondent/applicant on 28th April, 2023 pending the hearing and determination of the appeal at the Court of Appeal on condition that the applicant deposits half the decretal amount into a joint interest earning account in the names of both Advocates within 30 days from today; and
(iv) Costs of the instant application shall abide in the appeal.
It is so ordered.
DATED, SIGNED and DELIVERED at NAIROBI on this 23rd day of February, 2024. Ruling delivered through Microsoft Teams Online
Platform.
NJOKI MWANGI
JUDGE
In the presence of:
Mr. J. Leakey for Mr. Kanjama SC for the judgment debtor/applicant
Mr. Lubullelah Eugene for the decree holder/respondent
Ms B. Wokabi – Court Assistant.