1. Vide an application dated 27th October 2023, the respondent/applicant, inter alia sought orders that the firm of Morgan Omusundi to be allowed to come on record for the respondent/applicant after judgment; that an order for a stay of execution of the judgment and decree issued on 3rd October 2023 and consequential orders emanating therein be granted, pending hearing and determination of the intended appeal.
2. As can be discerned from the grounds on the face of the application and affidavit in support, the application is premised on the grounds that the respondent/applicant being aggrieved with the judgment delivered by this court on 3rd October 2023, filed a notice of appeal. He contends that if the order of stay sought is not granted and execution proceeds, he will be evicted, rendered destitute, will suffer substantial loss and the intended appeal will be overtaken by events. It is his contention that the application was filed without unreasonable delay; that he has an arguable appeal with a high probability of success and the respondent will not suffer any prejudice if the orders sought are granted.
3. The application is opposed vide the replying affidavit of Charles Kibet Yabei sworn on 5th December, 2023. He deposes that the instant application is fatally and incurably defective, bad in law, misconceived, an abuse of the court process and should be dismissed with costs; that the respondent/applicant has not met the threshold of being granted the orders under Order 42 Rule 6 of the Civil Procedure Rules; that due to the declaratory nature of the prayers granted, effect of the declaratory judgment ought not to be subject of a stay of execution because declaratory orders do not direct a party to take any particular step or carry out an action and that the declaratory orders only made a pronouncement in regard to the applicant/respondent’s status to the suit property.
4. In a further affidavit sworn on 11th December 2023, the applicant/respondent deposed that the replying affidavit is baseless and fatally defective as it has been sworn by a stranger to the suit; that a power of attorney was not annexed to the replying affidavit and that as a non-party to the suit, he does not have locus standi in the proceedings. He reiterated that he has complied with the requisite conditions for stay and is willing to provide security for costs and abide by any conditions and terms that this court deems fit to impose.
5. The application was disposed off by way of written submissions.
6. In his submissions filed on 29th January 2024 the respondent/applicant reiterates the averments in his supporting and supplementary affidavits. He relied on the cases of Seaman Building & Civil Engineering Ltd v Justus Makokha Nasongo (2020) eklr, Amal Hauliers Limited v Abdulnasir Abukar Hassan (2017) eklr, Port Retz Maternity v James Karanja Kabia Civil Appeal No. 63 of 1997. and Butt V Rent Restriction Tribunal (1979).
7. In his submissions filed on 25th January 2024, the applicant/respondent gives a background of the cases urged by the respective parties and reiterated the averments in his replying affidavit. He relied on the cases of Butt V. Rent Restriction Tribunal (1979) eklr. James Wangalwa V Agnes Naliaka Cheseto (2012) eklr, Joseph Gachie t/a Joska Metal Works V Simon Ndeti Muema (2012) Masisi Mwita V Damaris Wanjiku Njeri (2016) eklr, Arun Sharma V Ashana Raikundalia t/a A Raikundalia & Co. Advocates & 2 others (2014) eklr and Equity Bank Ltd v Taiga Adams Company Ltd (2012) eklr. Hassan Guyo Wakalo v Straman EA ltd (2013) eklr.
Analysis and Determination.
8. I have considered the application, the affidavits filed in support and opposition and the rival submissions by both parties. I find the issues for determination to be;
1)Whether the replying affidavit is defective
2) Whether the application as filed offends the provisions of Order 42 Rule 6(4) of the Civil Procedure Rules.
3)Whether the respondent/applicant has made up a case for being granted the orders sought.
9. On whether the replying affidavit is defective, it is noted that this court vide a ruling delivered on19th May 2022, allowed Pamela Jebichii Kiplagat, Benjamin Too Kiprotich and Charles Kibet Yabei, to plead and appear on behalf of Milka Kabkangoi, the plaintiff herein. Charles Kibet Yabei being one of the persons to whom Milka Kabkangoi donated power of Attorney, can therefore not be said to lack locus Standi in these proceedings.
10. On whether the application offends the provisions of Order 42 Rule 6 (4) of the Civil Procedure Rules, I have perused the court record and I have not seen the notice of appeal referred to in paragraph 3 of the applicant’s supporting affidavit marked CC1. I have also not seen the Memorandum of Appeal dated 6th November 2023 referred to in the applicant’s submissions. The court is therefore in the dark as to whether an appeal has been preferred to the Court of Appeal or not.
11. Filing a notice of appeal was found to be equivalent to filing an appeal for purpose of stay of execution pending appeal in the case of Rosemary Wanjiru Njiraini v Officer in Charge of Station Molo Police Station & another [2019] eklr where the court held:
“For the purposes of applying for stay pending appeal, the law does provide that if a Notice of Appeal is filed, then it ought to be deemed that the party has filed an appeal. This is provided for under Order 42 Rule 6 (4) which provides inter alia, that “for the purposes of this rule, an appeal to the Court of Appeal shall be deemed to have been filed when under the Rules of that Court notice of appeal has been given.” The words “for the purpose of this rule” inform one that the presumption that an appeal has been filed is limited, so as to allow one to be able to file an application for stay pending appeal. The reasoning for this is not far to find, for one cannot seek orders for stay pending appeal when no appeal has been filed, yet, it may take time to file the record of appeal, and it should not be the case that the party is exposed for the entire duration of time taken before the appeal proper is filed.”
12. In applying the decision in the cited case to the circumstances of this case, where no notice of appeal has been lodged in line with the provisions of Order 42 Rule 6(4) of the Civil Procedure Rules, or if one was lodged, it is not before this court, I find that there is no appeal for purposes of granting an order for stay of execution pending Appeal.
13. On whether an advocate applying to come on record after judgement can be allowed to do so when an order for stay has been denied, I adopt the holding in the case of Danson Muniu Njeru v William Kiptrbei Korir & 6 Others (2014) eklr, where the court faced with similar circumstances, held that although the application failed because no appeal had been filed, there was nothing wrong in allowing the new counsel to come on record. The court stated; “For the record, I have not seen anything wrong with the representation of M/s Kimaru Kiplagat for I have noted that they came on record through a consent that was signed between them and the previous counsel in line with Order 9 rule 9(b), assuming that the said consent was duly served.”
14. In the instant case, a consent order dated 27th October 2023 was filed between the firms of M/S Morgan Omusundi Advocates and M/S Kipkorir Cheruiyot & Kigen advocates allowing the firm of M/S Morgan Omusundi Advocates to come on record on behalf of the defendant in place of M/S Kipkorir Cheruiyot & Kigen Advocates as required under Order 9 Rule 9 (b) of the Civil Procedure Rules.
15. Consequently, I allow the firm of M/S Morgan Omusundi Advocates to come on record for the respondents/applicant but I decline to grant the order for stay of execution pending the intended appeal. Costs of the application are awarded to the applicant/respondent
16. Orders accordingly.
Ruling dated, signed and delivered at Iten this 9th day of May, 2024.
Ruling delivered virtually in the presence of:-
N/A for the applicant
Ms. Sang holding brief for Ms. Chesoo for the respondents
Court Asst.: Jael