1. The client/applicant filed a Notice of Motion application dated 18th December, 2023 pursuant to the provisions of Order 5, Order 10, Rule 11, Order 22 Rule 5, Order 42 & Order 51 of the Civil Procedure Rules, 2010, Sections 1A, 1B & 3A of the Civil Procedure Act, Rule 11(3) of the Advocates Remuneration Order, Article 159 of the Constitution of Kenya, 2010, and all other enabling provisions of the law seeking the following orders -
i) Spent;
ii) That the applicant be granted leave to appeal to the Court of Appeal against the whole ruling of Honourable Lady Justice Njoki Mwangi delivered on 1st December, 2023;
iii) That there be a stay of execution of the ruling delivered on 1st December, 2023 and the Certificate of taxation dated 2nd November, 2022 pending the hearing and determination of this application and the intended appeal;
iv) That the Honourable Court be pleased to make such further orders to meet the ends of justice; and
v) That costs of this application be provided for
2. The application is premised on the grounds on the face of the Motion and is supported by an affidavit sworn on the same day by Naran Kunvarij Vaddodiya, the applicant’s Director. In opposition thereto, the respondent filed a replying affidavit sworn on 12th January, 2024 by Eugene Lubale Lubullelah, an Advocate of the High Court of Kenya and learned Counsel for the respondent.
3. The application herein was canvassed by way of written submissions. The applicant’s submissions were filed by the law firm of Tito & Associates Advocates on 12th March, 2024, whereas the respondent’s submissions were filed on 13th March, 2024 by the law firm of Lubulellah & Associates.
4. Ms. Bakari, learned Counsel for the applicant submitted that the applicant’s reference was not determined on merits, rather it was dismissed for failure by the applicant to file a Notice of Objection as provided for under Rule 11(1) of the Advocates Act. She relied on the decisions in Phillip Chemwolo & another v Augustine Kubede [1982-88] KLR 103 AT 1040 and Belinda Murai & others v Amos Wainaina [1979] eKLR, and submitted that the failure to file the said Notice of Objection by the applicant was an oversight by Counsel, thus the applicant should not be punished for the mistake of its Counsel.
5. Counsel for the applicant argued that if the application herein is not allowed, the applicant will not only be prejudiced but also stands to suffer substantial loss noting that the respondent’s bill of costs was taxed at Kshs.1,540,000/=. Ms Bakari cited the provisions of Order 42 Rule 6 of the Civil Procedure Rules, 2010 and the case of Robert Mbuvi Nguta v Jophat Ndambuki Kituu [2016] eKLR, to bolster the position that the applicant has satisfied the conditions to warrant being granted an order for stay of execution pending the intended appeal.
6. Mr. Lubullelah, learned Counsel for the respondent cited the case of Kenya Shell Limited v Kobil Petroleum Limited [2006] eKLR and the Court of Appeal case of Machira t/a Machira & Company Advocates v Mwangi & Another [2002] 2 KLR 391, and submitted that whether or not leave to appeal is granted is a matter within the Court’s discretion, which discretion should be exercised judiciously. He referred to the East Africa Court of Appeal case of Sango Bay Estate Ltd & Others v Dredner Bank A. G. [1971] EA 17, and submitted that in determining whether or not to grant an order for leave to appeal, the main issue for consideration is whether the intended appeal raises arguable grounds.
7. Counsel for the respondent pointed out that the applicant had not annexed a draft Memorandum of Appeal to the instant application in a bid to demonstrate that it has an arguable appeal with high chances of success, or that the intended appeal raises any issue of public interest and/or a novel point requiring clarification. He relied on the decisions in Matiri Mburu & Chepkemboi Advocates v Occidental Insurance Company Limited [2017] eKLR and Ufundi Co-operative Savings and Credit Society v Njeri Onyango & Company Advocates [2015] eKLR, and stated that the applicant’s failure to comply with the mandatory requirements and timelines under Rule 11(1) of the Advocates Remuneration Order are not mere technicalities that can be wished away by the provisions of Article 159(2)(d) of the Constitution of Kenya, 2010, but go to the jurisdiction of the Court.
8. He cited the case of W. Amolo t/a Amolo Kibaya & Co. Advocates v Samson Keengu Nyamweya [2016] eKLR and stated that the Reference was dismissed by the High Court in its ruling delivered on 1st December, 2023 having been filed 32 days after delivery of the taxation ruling and it was filed out of time, and despite the said delay, the applicant did not seek leave of the Court to file it out of time and/or extension of time within which to file the said Reference. Mr. Lubullelah argued that in any event, leave to appeal against the judgment of this Court ought to be sought at the Court of Appeal.
9. On the issue of stay of execution, Mr. Lubullelah relied on the case of Elena D. Korir v Kenyatta University [2014] eKLR and submitted that the applicant has not satisfied the requisite conditions to warrant being granted an order for stay of execution. He explained that is because the applicant has not demonstrated that he stands to suffer substantial loss in the event that the instant application is not allowed, and it has not demonstrated that if the taxed sum is paid out to the respondent, the said respondent will not be in a position to refund the same to the applicant in the event the intended appeal is successful. He asserted that the respondent has the means to refund the decretal sums to the applicant in the unlikely event of the intended appeal succeeding.
10. Counsel relied on the case of Nganga Kabae v Kahunyo Kijwani Nairobi HCCA No. 182 of 1999, and stated that the security offered must be commensurate with the decretal amount, which amount must be secured by the applicant depositing the decretal amount in Court, or by depositing the decretal amount in a joint interest-earning account in the names of the Advocates for the parties, or by providing a Bank Guarantee or an Unconditional Letter of Credit securing payment of the decretal sum to the decree holder. He submitted that in this case, the applicant has not given any proposal and/or offer in relation to deposit of security for the due performance of the decree, in the event that an order for stay of execution is granted. Counsel contended that the applicant’s application for stay of execution is defective.
ANALYSIS AND DETERMINATION.
11. I have considered the application filed herein, the grounds on the face of the Motion and the affidavit filed in support thereof. I have also considered the replying affidavit filed by the respondent, as well as the written submissions by Counsel for the parties. The issues that arise for determination are –
i) Whether the applicant should be granted leave to appeal against this Court’s ruling delivered on 1st December, 2023; and
ii) Whether the applicant has made out a case to warrant being granted an order for stay of execution.
12. The applicant in its supporting affidavit deposed that a ruling dismissing the applicant’s Reference and entering judgment in favour of the respondent was delivered on 1st December, 2023, and being dissatisfied with the said ruling, the applicant wishes to appeal against it. It averred that it faces real and imminent risk of execution in the absence of temporary orders for stay of execution.
13. It further averred that in the event the said stay orders are not granted, the applicant stands to suffer substantial loss since the respondent will not be able to reimburse it the decretal sum in the event the intended appeal is successful, thus rendering the intended appeal merely academic.
14. It was stated by the applicant that the learned Judge erred in law and fact by failing to appreciate that the error of procedure in filing the Reference was solely the mistake of the Advocate and as such, the same should not be visited upon the client. The applicant further stated that said issue is weighty, serious, meritorious hence it deserves the Court of Appeal’s judicial consideration on appeal.
15. The applicant stated that the application herein has been made without any unreasonable delay. Further, that the respondent shall not suffer any prejudice in the event the orders sought are granted.
16. In the replying affidavit by the respondent, it averred that the application herein has been filed after an inordinate and unexplained delay since the ruling the applicant seeks to appeal against was delivered on 1st December, 2023, whereas the application herein was filed on 18th December, 2023.
17. He averred that the period within which the applicant could appeal to the Court of Appeal against the decision of this Court was fourteen (14) days, but the application herein was filed eighteen (18) days after the ruling sought to be appealed against was delivered, and the applicant has not sought leave to file an appeal out of time.
18. It was contended by the respondent that the application for leave to appeal is incompetent as the same does not set out the specific findings or issues upon which leave to appeal is being sought. The respondent deposed that an application for leave to appeal should have been made orally in Court when judgment was entered in favour of the respondent, and having failed to do so, the said application should be made to the Court of Appeal.
19. The respondent further stated that the onus of proving substantial loss and an allegation that the decree holder cannot repay the decretal sum if the appeal is successful, lies with the person seeking stay of execution. Further, real and cogent evidence must be placed before this Court to show that the respondent is not able to refund the decretal sum should the intended appeal succeed.
20. The respondent averred that the fact that the execution process has been put in motion or is likely to be put in motion, by itself does not amount to substantial loss, because execution is a lawful process.
Whether the applicant should be granted leave to appeal against the Court’s ruling delivered on 1st December, 2023.
21. Appeals arising from taxation decisions of the High Court to the Court of Appeal are provided for under Rule 11(3) of the Advocates Remuneration Order which states that –
“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.”
22. From the above provisions, it is evident that this Court has the discretion to grant leave to the applicant to appeal against its ruling of 1st December, 2023 to the Court of Appeal. In determining whether or not to grant an order for leave to appeal to the Court of Appeal, this Court has to consider whether the intended appeal raises any arguable grounds to demonstrate that the intended appeal has chances of succeeding. Before determining whether the application for leave to appeal to the Court of Appeal is merited, this Court has to consider whether the application was filed in time.
23. From the record, it is clear that the applicant did not orally seek leave of the Court to appeal against its ruling of 1st December, 2023 on the date of delivery of the said ruling. The respondent submitted that the application herein was filed late and without leave of the Court, and the applicant has not sought extension of time and/or leave to file the application herein out of time. The time within which an intended appellant ought to file an application for leave to appeal against the decision of the High Court to the Court of Appeal is provided for under Rule 41(1) of the Court of Appeal Rules, which states that –
“(1) In a civil matter -
a) where an appeal lies with the leave of the superior court, application for such leave may be made –
i) informally at the time when the decision against which it is desired to appeal is given; or
ii) by motion or chamber summons according to the practice of the superior court, within fourteen days of such decision;
b) where an appeal lies with the leave of the Court, application for such leave shall be made -
i) in the manner laid down in rules 44 and 45 within fourteen days after the decision against which it is desired to appeal; or
ii) where application for leave to appeal has been made to the superior court and refused, within fourteen days after such refusal.”
24. Rule 41(1)(a) of the Court of Appeal Rules which is applicable in this case provides that an application for leave to appeal against the decision of the superior Court may be made within fourteen (14) days of such decision. The ruling the applicant intends to appeal against was delivered on 1st December, 2023, and the applicant ought to have filed the application herein on or before 15th December, 2023, as was correctly submitted by Counsel for the respondent. This Court is bound by the holding in the case of Trans Nzoia Securities Ltd v Stuadte & another (Civil Application E040 of 2022) [2024] KECA 109 (KLR) (9 February 2024) (Ruling), where the Court of Appeal addressed the issue of computation of time.
25. Since the application herein was filed on 21st December, 2023, this Court agrees with Counsel for the respondent that it was filed late. Further, while I appreciate that I have the discretion to extend time within which the application herein could be filed, the instant application has not sought an order for either extension of time and/or leave to file the said application out of time.
26. In the premise, this Court finds that the application for leave to appeal to the Court of Appeal against this Court’s ruling delivered on 1st December, 2023 is fatally defective for being filed out of time, thus bereft of merits.
27. Since the application for leave to appeal to the Court of Appeal against this Court’s ruling delivered on 1st December, 2023 is found to be without merits, I will not delve into the issue of stay pending appeal as doing so would be akin to engaging in an academic exercise.
28. The upshot is that the Notice of Motion dated 18th December, 2023 is not merited. It is hereby dismissed with costs to the respondent.
It is so ordered.
DATED, SIGNED and DELIVERED at NAIROBI on this 7th day of June 2024. Ruling delivered through Microsoft Teams Online Platform.
NJOKI MWANGI
JUDGE
In the presence of:
No appearance for the Client/applicant
Mr. Lubullelah Eugene for the Advocate/respondent
Ms B. Wokabi – Court Assistant.