1. The Applicant filed application dated 16th April, 2025 under Certificate of Urgency seeking orders among others that:
i. There be a stay of execution of the judgment of the Court delivered on 28th March, 2025 and consequential orders.
ii. That the Court sets aside the said judgment and consequential orders and the Court be pleased to consider the respondent’s/applicant’s written submissions in respect of the appeal filed on the e-filing system on 21st March, 2025.
2. The application was supported by the affidavit of Counsel Mutua Makau who stated among others that:
i. That on 14th April, 2025 counsel for the appellant served their firm with the judgment of this court which was delivered on 28th February, 2028 and that the applicant became aware of the judgment on 13th March, 2025 during a random check on the matter however the judgment had not been delivered.
ii. That from the case activity, he noted that the appeal had been scheduled on several occasions between 21st February, 2024 and 14th March, 2025 and that the appellant only served their law firm with the mention notices for 24th February, 2024 and 28th October, 2024.
iii. That upon perusal of the documents uploaded on the system, it was clear that the appellant did not file affidavits of service for the dates the matter came up in confirmation that their firm had notice to attend court.
iv. That on two occasions the applicant’s counsel attempted to log into the Court through the judiciary portal but was unsuccessful as he was not getting admitted.
v. That upon learning of the progress of the matter, counsel for the applicant proceeded with haste to prepare and lodge respondent’s submissions dated 19th March, 2025 and which were filed and served on 21st March, 2025.
vi. That counsel further prepared correspondence to counsel for the appellant dated 21st March, 2025 raising concerns about the matter, which correspondence was also copied to the Deputy Registrar for further action with the hope that the Registrar would have brought the same to the attention of the Court.
vii. That had their firm been served with the mention and or hearing notices as was notified on 14th April, 2025, the firm would have participated in the proceedings and would have filed the applicant’s submissions within the time directed by the Court.
viii. That it was only fair and just to have the court issue the order sought and set aside the judgment so as to be able to consider the applicant’s submissions as to afford the applicant the right to a fair hearing as the appellant remained intent on opposing the appeal.
3. Just like the respondent in the appeal, the respondent/appellant in this application never filed any response to the application.
4. The essence of the application was that the appellant never brought to the applicant’s attention the several times the appeal was mentioned including the mention setting timeliness for filing of submissions. Counsel therefore contended that if they were aware of the several mentions, they would have filed their submissions on time and the Court would have considered the same in preparing the judgment. Counsel in effect admits that they filed their submissions outside the timelines set by the court but blame it on the failure by counsel to serve them with the mention notices.
5. From the record, since this matter came up in court for the first time on 21st February, 2024 through to the delivery of judgment on 28th March, 2025, not even once did the respondent/applicant appear in court. The CTS system is programmed to issue alerts to counsel or pro se litigants whenever there is activity in their matter. Assuming it is true that the appellant never served the respondent/applicant with the mention notices, which the court highly doubts, Counsel for the applicant must have received an alert from the CTS on 28th March, 2025 when the judgment was delivered yet it took them close to three weeks to bring the present application. Further counsel for the applicant in his affidavit in support of the application stated that on two occasions he attempted to log into the Court through the judiciary portal but was unsuccessful as he was not getting admitted and further that upon learning of the progress of the matter, he proceeded with haste to prepare and lodge respondent’s submissions dated 19th March, 2025 and filed the same on 21st March, 2025 and that he further prepared correspondence to counsel for the appellant dated 21st March, 2025 raising concerns about the matter, which correspondence was also copied to the Deputy Registrar for further action with the hope that the Registrar would have brought the same to the attention of the Court.
6. Stopping there, if it is true that counsel faced challenges logging into the Court session, as an officer of the Court and acting in the interest of his client, he ought to have brought this to the attention of the Registrar and or perused the Court file to see what directions had been given in the matter and if they required immediate remedial action from him. Besides counsel has not disclosed when it was that he unsuccessfully tried to log into the Court system. Counsel further alleged that he wrote to his colleague raising his concerns over the matter and copied the letters to the Court for action and hoped the Registrar would have brought to the attention of the Court his concerns. Courts are not moved by correspondence especially on matters pending before the Court. Counsel as an officer of the Court ought to have known this better and should have either immediately fixed the matter for mention before the court or filed a formal application raising his concerns for consideration and or direction by the Court.
7. The only ground for which the applicant would like this court to set aside its judgment is so that the court can consider their belated submissions. This is not a sufficient ground for the Court to set aside its decision and embark afresh on writing a judgment. What if after consideration of such late submissions the Court arrives at the same conclusion?
8. Submissions are no doubt helpful to the Court in appreciating the dispute before it from the perspective of either party. They are as it were a tool for persuasion by a party to the Court to find in that party’s favour. However the Court is not necessarily bound to make a decision based on submission by Counsel. The Court is guided by evidence and law in deciding cases before it and many a times a court will reach a decision completely different from a position agitated for by the parties in their submissions if such decision is inevitably underpinned on the law and evidence presented before it.
9. From the foregoing, the Court is of the view that no sufficient grounds have been laid by the applicant to warrant staying or setting aside of its judgment delivered on 28th March, 2025.
10. The application dated 16th April, 2025 is therefore found without merit and is hereby dismissed with costs.
11. It is so ordered.
Dated at Nairobi this ……… day of…………. 2025
Delivered virtually this……… day of ………….2025
Abuodha Nelson Jorum
Presiding Judge-Appeals Division
i. There be a stay of execution of the judgment of the Court delivered on 28th March, 2025 and consequential orders.
ii. That the Court sets aside the said judgment and consequential orders and the Court be pleased to consider the respondent’s/applicant’s written submissions in respect of the appeal filed on the e-filing system on 21st March, 2025.
2. The application was supported by the affidavit of Counsel Mutua Makau who stated among others that:
i. That on 14th April, 2025 counsel for the appellant served their firm with the judgment of this court which was delivered on 28th February, 2028 and that the applicant became aware of the judgment on 13th March, 2025 during a random check on the matter however the judgment had not been delivered.
ii. That from the case activity, he noted that the appeal had been scheduled on several occasions between 21st February, 2024 and 14th March, 2025 and that the appellant only served their law firm with the mention notices for 24th February, 2024 and 28th October, 2024.
iii. That upon perusal of the documents uploaded on the system, it was clear that the appellant did not file affidavits of service for the dates the matter came up in confirmation that their firm had notice to attend court.
iv. That on two occasions the applicant’s counsel attempted to log into the Court through the judiciary portal but was unsuccessful as he was not getting admitted.
v. That upon learning of the progress of the matter, counsel for the applicant proceeded with haste to prepare and lodge respondent’s submissions dated 19th March, 2025 and which were filed and served on 21st March, 2025.
vi. That counsel further prepared correspondence to counsel for the appellant dated 21st March, 2025 raising concerns about the matter, which correspondence was also copied to the Deputy Registrar for further action with the hope that the Registrar would have brought the same to the attention of the Court.
vii. That had their firm been served with the mention and or hearing notices as was notified on 14th April, 2025, the firm would have participated in the proceedings and would have filed the applicant’s submissions within the time directed by the Court.
viii. That it was only fair and just to have the court issue the order sought and set aside the judgment so as to be able to consider the applicant’s submissions as to afford the applicant the right to a fair hearing as the appellant remained intent on opposing the appeal.
3. Just like the respondent in the appeal, the respondent/appellant in this application never filed any response to the application.
4. The essence of the application was that the appellant never brought to the applicant’s attention the several times the appeal was mentioned including the mention setting timeliness for filing of submissions. Counsel therefore contended that if they were aware of the several mentions, they would have filed their submissions on time and the Court would have considered the same in preparing the judgment. Counsel in effect admits that they filed their submissions outside the timelines set by the court but blame it on the failure by counsel to serve them with the mention notices.
5. From the record, since this matter came up in court for the first time on 21st February, 2024 through to the delivery of judgment on 28th March, 2025, not even once did the respondent/applicant appear in court. The CTS system is programmed to issue alerts to counsel or pro se litigants whenever there is activity in their matter. Assuming it is true that the appellant never served the respondent/applicant with the mention notices, which the court highly doubts, Counsel for the applicant must have received an alert from the CTS on 28th March, 2025 when the judgment was delivered yet it took them close to three weeks to bring the present application. Further counsel for the applicant in his affidavit in support of the application stated that on two occasions he attempted to log into the Court through the judiciary portal but was unsuccessful as he was not getting admitted and further that upon learning of the progress of the matter, he proceeded with haste to prepare and lodge respondent’s submissions dated 19th March, 2025 and filed the same on 21st March, 2025 and that he further prepared correspondence to counsel for the appellant dated 21st March, 2025 raising concerns about the matter, which correspondence was also copied to the Deputy Registrar for further action with the hope that the Registrar would have brought the same to the attention of the Court.
6. Stopping there, if it is true that counsel faced challenges logging into the Court session, as an officer of the Court and acting in the interest of his client, he ought to have brought this to the attention of the Registrar and or perused the Court file to see what directions had been given in the matter and if they required immediate remedial action from him. Besides counsel has not disclosed when it was that he unsuccessfully tried to log into the Court system. Counsel further alleged that he wrote to his colleague raising his concerns over the matter and copied the letters to the Court for action and hoped the Registrar would have brought to the attention of the Court his concerns. Courts are not moved by correspondence especially on matters pending before the Court. Counsel as an officer of the Court ought to have known this better and should have either immediately fixed the matter for mention before the court or filed a formal application raising his concerns for consideration and or direction by the Court.
7. The only ground for which the applicant would like this court to set aside its judgment is so that the court can consider their belated submissions. This is not a sufficient ground for the Court to set aside its decision and embark afresh on writing a judgment. What if after consideration of such late submissions the Court arrives at the same conclusion?
8. Submissions are no doubt helpful to the Court in appreciating the dispute before it from the perspective of either party. They are as it were a tool for persuasion by a party to the Court to find in that party’s favour. However the Court is not necessarily bound to make a decision based on submission by Counsel. The Court is guided by evidence and law in deciding cases before it and many a times a court will reach a decision completely different from a position agitated for by the parties in their submissions if such decision is inevitably underpinned on the law and evidence presented before it.
9. From the foregoing, the Court is of the view that no sufficient grounds have been laid by the applicant to warrant staying or setting aside of its judgment delivered on 28th March, 2025.
10. The application dated 16th April, 2025 is therefore found without merit and is hereby dismissed with costs.
11. It is so ordered.
Dated at Nairobi this ……… day of…………. 2025
Delivered virtually this……… day of ………….2025
Abuodha Nelson Jorum
Presiding Judge-Appeals Division