IN THE COURT OF APPEAL

AT NAIROBI

[CORAM: NAMBUYE, KARANJA & SICHALE, JJ.A]

CIVIL APPLICATION NO. 121 OF 2020

BETWEEN

OSEKO & OUMA ADVOCATES LLP...............................APPLICANT

AND

SAMUEL GACHIE KAMITI...........................................RESPONDENT

(In the matter of an application for stay of execution pending the hearing and determination of the appeal from the ruling and order dated 20/12/2019 (Francis Tuiyott,J) in the High Court of Kenya at Nairobi

in

Commercial & Tax Division

Civil Suit No. 64 of 2019 (OS))

RULING OF THE COURT

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1. UPON perusing the Notice of Motion dated 5^th August, 2020 by the applicant brought under Sec. 26(2) of the Court of Appeal (Organization and Administration Act) 2015, Sections 3A, 3B and 5 of the Appellate Jurisdiction Act, Rules 5(2)(b), 41, 42,43 and 47 of this Court’s Rules where the applicant seeks, inter alia:

(i) Stay of the interim orders issued on 28^th February,2019 and 6^th July, 2020;

(ii) Stay of the order dated 20^th December, 2019 directing the applicant to transfer monies held by the applicant to a joint interest earning account in the joint names of the applicant and the respondent;

(iii) Stay of the order of 20^th December, 2019, directing the applicant to release its client’s file in HCC No. 543 of 2010 to the firm of Kipkenda & Company Advocates;

(iv) An order staying any further proceedings at the High Court, all pending the hearing and determination of the filed appeal from the orders of Tuiyott. J. dated 28^th February, 2019, 6^th July, 2020 and 20^th December, 2019; and

2. UPON perusing the affidavit of Christine Ouma Oseko sworn on 5^th August, 2020, in support of the application; and

3. UPON perusing the affidavit of Samuel Gachie Kamiti sworn on 27^th August, 2020 in opposition to the motion; and

4. UPON perusing the applicant’s submissions dated 10^th September, 2020, where it is contended that by the release of Kshs 45,000,000.00 together with accrued interest and its client’s file will have the effect that the applicant will lose the lien it holds over unpaid legal fees, disbursements and taxes payable by the respondent, thus rendering the appeal nugatory and that it has an arguable  appeal  as  it  tends  to  challenge  the  trial  judge’s  arrogation  of jurisdiction over the substantive arbitration proceedings and failing to   find that the appellant and the respondent were bound by the express provisions of the retainer agreement, to name but a few of the grounds to be relied upon by the applicant; and

5. UPON perusing the respondent’s written submissions dated 16^th September, 2020 in which it is submitted that the applicant’s right of lien will not be compromised by depositing the sum of Kshs 45 million in a joint interesting account as this will not prejudice the applicant as both parties will have control of the funds in the joint account and that the release of the file will not prejudice the applicant as its interests on fees will be secured by the funds in the joint account; and

6. HAVING considered the principles that guide this Court in determination of rule 5(2)(b) applications as stated in Stanley Kang’ethe Kinyanjui vs. Tony Keter & 5 Others [2013] eKLR and noting that the applicant has not demonstrated that the appeal which has already been filed will be rendered nugatory unless the orders sought are granted, given that the order made was that the sum of Kshs 45 million be deposited in a joint interest account, thus safeguarding the applicant’s interests, if at all, we make the following orders:-