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|Case Number:||Environment and Land Case 183 of 2019|
|Parties:||Muiruri & Wachira Advocates v Nicola Farms Limited|
|Date Delivered:||09 Dec 2021|
|Court:||Environment and Land Court at Nairobi|
|Judge(s):||Joseph Oguttu Mboya|
|Citation:||Muiruri & Wachira Advocates v Nicola Farms Limited  eKLR|
|Advocates:||Mr. Musili for the Advocate/Respondent Mr. Monda H/B for Mr. Mereka for the Client/Applicant|
|Court Division:||Environment and Land|
|Advocates:||Mr. Musili for the Advocate/Respondent Mr. Monda H/B for Mr. Mereka for the Client/Applicant|
|History Advocates:||Both Parties Represented|
|Case Outcome:||Two applications dismissed with costs to the advocate/respondent|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAIROBI
ELC CASE NO. 183 OF 2019
MUIRURI & WACHIRA ADVOCATES..............................................APPLICANT
NICOLA FARMS LIMITED............................................................RESPONDENT
1. The Ruling herein is in respect of two Applications filed by the Client/Applicant as against the Advocate herein dated the 19th October 2021, and 21st October 2021, respectively.
2. Vide the Application dated 19th October 2021, the Client/Applicant herein seeks the following reliefs;
i. The time limited for filling a Reference under Rule 11(2) of the Advocate Remuneration Order be and is hereby enlarged.
ii. The Draft Reference attached herewith be deemed as duly filed within such enlarged time subject to payment of the requisite court fees.
iii. Costs of this Application be in the cause.
3. The subject Application is based and/or premised on the various grounds which are contained at the foot thereof and same is further supported by the affidavit one David Mukii Mereka, who is the Clients’ Advocate on record.
4. Upon being served with the Application dated the 19th October 2021, the Advocate herein filed a Replying affidavit sworn by one Samuel Wachira Gichuki on the 3rd November 2021, to which the deponent attached a total of seven (7) annextures.
5. Vide the Application dated the 21st October 2021, the Client herein has sought the following reliefs;
ii. The Notice of Motion Application dated 21st October 2021, filed by the Client and seeking the stay of the Ruling entered against it on the 14th October 2021, pending hearing and determination of Application.
iii. The Notice of Motion Application dated 21st October 2021, filed by the Client and seeking the stay of the Ruling entered against it on the 14th October 2021, pending hearing and determination of Appeal.
iv. Costs of this application be in the cause.
6. Similarly, the subject Application is premised and/or anchored on the grounds contained at the foot thereof, as well as the Supporting affidavit sworn by David Mukii Mereka and to which the Deponent has attached a total of eight (8) annexture thereto.
NOTICE OF MOTION APPLICATION DATED THE 19TH OCTOBER 2021
7. In respect of the subject Application, the counsel for the client has sworn the supporting affidavit and same has averred that the Advocates/Client bill of costs in respect of the subject matter was filed and thereafter set down for taxation before the taxing master. For clarity, the deponent has further averred that the said bill was taxed vide ruling rendered on the 25th February 2021.
8. It is further averred that upon the delivery and/or rendition of the ruling by the Deputy Registrar/Taxing Mistress, the client herein, felt aggrieved and/or dissatisfied and thereafter instructed the deponent to proceed and lodge a Notice of Objection to Taxation.
9. It has further been averred that upon the lodgment of the Notice to taxation, the taxing master, was obliged to issue and/or forward to the client the written reasons for the taxation of the bill of costs, for purposes of lodging a Reference to the High Court.
10. It is the deponent’s further averment that the reasons which were requested for, have neither been forwarded to the client, either as requested or at all.
11. It has further been averred that the taxation of the Advocate Client bill was erroneously undertaken by the taxing master and that the amount that was ultimately awarded to and in favor of the Advocates, was exaggerated.
12. In view of the foregoing, the Deponent has therefore contended that the intended Reference has overwhelming chances of success and thus deserving of being ventilated before the court.
RESPONSE BY THE ADVOCATE
13. Vide Replying Affidavit sworn on the 3rd November 2021, one Samuel Wachira Gichuki has averred that the Advocate herein was duly and lawfully instructed by the client to undertake assorted conveyance instructions by and/or on behalf of the client.
14. It is further averred that pursuant to and/or upon receipt of a foresworn instructions, the advocate herein proceeded to and carried out the instructions by and/or on behalf of the client.
15. Subsequently, it is averred that the advocate sought for payments from the client, but no such payment were forthcoming and therefore the Advocate, was called upon to issue and serve a demand note for fees.
16. It was further the averment by the Advocate that even after the demand for payment for fees, the client herein remained adamant and the fees, therefore remained outstanding, owing and payable.
17. Owing to the foregoing, the Advocate was constrained to file and/or lodge the Advocate/ client bill of costs, which was thereafter fixed and/or listed for taxation before the taxing master, culminating into the delivery of the ruling rendered on the 25th February 2021.
18. On the other hand, the deponent has further averred that the ruling which was delivered before the taxing master, was a comprehensive ruling and same contained the reasons and/or otherwise the basis, which was necessary and therefore the client herein ought to have filed and/or lodged the requisite Notice of Objection to taxation, as well as the Reference, challenging the decision of the taxing master.
19. It is further averred, that upon the delivery of the ruling, the Applicant proceeded to and filed an Application for entry of judgment to and/or in favor of the advocate, in line with provisions of Section 51(2) of the Advocates Act, Chapter 16, Laws of Kenya.
20. It has further been averred that the Application by the advocate, whereby same sought for judgment to be entered in terms of Certificate of costs, was heard and thereafter allowed vide ruling rendered on the 14th October 2021, whereupon the court duly endorsed and entered judgment for the advocate.
21. Besides, the deponent has further averred that upon the endorsement and entry of judgment in accordance with the certificate of taxation, the certificate of taxation ceased to exist and therefore the intended Reference, would be an act in futility.
22. Consequently and in view of the foregoing, the Advocate has sought for Orders that the subject Application be Dismissed.
NOTICE OF MOTION APPLICATION DATED THE 21ST OCTOBER 2021
23. Vide Supporting Affidavit sworn on the 21st October 2021, the Respondent/ Advocate has averred that the Application for entry of judgment in accordance with the certificate of taxation was heard and disposed of vide ruling of the court rendered on the 14th October 2021, whereupon, the honourable court proceeded to and indeed entered Judgment, in favor of the Advocate.
24. It is further averred that as a result of the entry of the judgment to and/or in favor of the Advocate, the client herein felt aggrieved and thereafter proceeded to and lodged a Notice of Appeal to the honourable Court of Appeal, whereby same are seeking to Appeal against the entire ruling and/or decision of the court, in respect of which judgment was entered.
25. On the other hand, it has further been averred that following the entry of judgment in favor of the Advocate, there is a likelihood, that the Advocate is disposed to commence and/or levy execution for the entire sum of Kes.4, 999, 281.92 Only, and such execution, shall thus occasion Irreparable loss to the Respondents.
26. Based on the foregoing, the Respondent has therefore sought for stay of execution pending the hearing and determination of the Intended Appeal vide the Notice of Appeal dated and lodged in court, on the 19th October 2021.
RESPONSE TO THE APPLICATION DATED THE 21ST OCTOBER 2021
27. In response to the Application dated the 21st October 2021, the Advocate herein has filed the Replying Affidavit sworn by one, Stephen Musili Muli, sworn on the 26th October 2021 and in respect of which the deponent has averred as hereunder;
28. That the Advocates/ client bill of costs was lodged and/or presented before the court for taxation and that during the entire process, the Advocate/client, was duly represented by counsel and therefore the Bill of costs was prosecuted in the presence of the Client’ duly appointed Advocate.
29. It is further averred that upon the taxation of the bill of costs, the client herein, had the opportunity to file a Reference within 14 days, but this was not done.
30. On the other hand, it has similarly been averred that the taxation herein and the resultant judgment, which was entered on the basis of the certificate of taxation, has given rise to a monetary decree, which the client is obligated to liquidate and/or settle.
31. Finally, it has been averred that the client herein has not shown and/or established that same shall suffer Substantial loss, which essentially, is the cornerstone for granting of an order for stay of execution pending the hearing and determination of an Appeal and/or Intended Appeal to the Court of Appeal.
32. In the premises, it has thus been contended that the client herein is therefore not entitled to the Reliefs sought and that the Application dated the 21st October 2021, should therefore be Dismissed.
SUBMISSIONS BY THE PARTIES
33. The subject matter came up before the court on the 27th October 2021, whereupon it transpired that the client herein had filed and/or lodged two applications as pertains to the subject matter. For clarity, the Applications were dated the 19th and 21st October 2021, respectively.
34. Owing to the fact that the two Applications touched on and/or concerned the same Legal Issues, as well as the subject matter, the honourable court directed that the two Applications be dealt with and be disposed of simultaneously.
35. On the other hand, it was further directed that the two Applications be canvased and/or be disposed of by way of written submissions, which were to be filed and exchanged by the parties, within the set timelines.
36. It is imperative to note that the parties herein duly complied with the directions and filed their respective submissions. For clarity, the Client herein filed her written submissions on the 23rd November 2021.
37. On the other hand, the Advocate filed his set of written submissions on the 24th November 2021, and which submissions were duly supported by various case law.
38. I must state that the two sets of written submissions, as well as the numerous Authorities cited and relied upon by the Advocates for the respective parties, form part and parcel of the Record of the court and in any event same have been duly considered.
ISSUES FOR DETERMINATION
39. Having reviewed and/or considered the two Applications, as well as the Supporting affidavit thereto, which have been sworn by the learned counsel appearing for the client, as well as the elaborate submissions filed on behalf of the Client and having similarly considered the two replying affidavits sworn on the 26th October 2021, and the 3rd November 2021, respectively on behalf of the advocate, I am of the opinion that the following issues germane for determination;
i. Whether the Application for extension of time to file a Reference is legally tenable and/or sound.
ii. Whether the Client has laid before the court sufficient basis and/or explanation for the delay to file/commence the Reference within the requisite timelines.
iii. Whether the Client herein has satisfied the conditions for grant of an order of stay of Execution pending the determination of the Intended Appeal.
ANALYSIS AND DETERMINATION
ISSUE NUMBER 1
Whether the Application for extension of time to file a Reference is legally tenable and/or sound.
40. On or about the 14th October 2021, this court rendered a ruling in respect of an Application, whereby the advocate herein had sought for entry and/or endorsement of judgment on the basis of the certificate of taxation.
41. In the course of the rendition of the said ruling, this court considered several, albeit numerous issues, including whether the client had filed a Notice of objection to taxation and if so, whether an omnibus Notice of objection to taxation, which did not isolate the items being objected to, could found a basis for lodgment of a Reference.
42. On the other hand, the court also considered whether as at the point in time, when the ruling was being crafted, the client herein had filed and/or lodged a Reference challenging the certificate of taxation.
43. It is imperative to note that the said ruling, which was delivered by this court on the 14th October 2021, is the basis of the Intended Appeal to the Honourable Court of Appeal, vide the Notice of Appeal dated 19th October 2021.
44. Be that as it may, one of the critical issues that the court considered and/ or touched on, concerned the validity and/or propriety of the omnibus Notice of Objection to Taxation filed by the client herein and which was dated the 26th February 2021.
45. While dealing with the issue of omnibus Notice of objection to taxation under reference, the court made reference to the decision in the case of Machira & Company Advocates v Arthur K Magugu & Another (2012) eKLR, where the court of appeal held as hereunder;
“As we have pointed out the intendment of the Rules Committee in providing for objections to bills of costs to be dealt with by references and not appeals or reviews was expedition. If vague notices are given taxing officers might be forced to give their reasons for their taxation of each item including even those not objected to. That would of course defeat the purpose of that expeditious procedure. Having not specified the items objected to and sought reasons for their taxation, the Respondents notice of 1st August 2001 was fatally defective. It follows that the Respondents reference based on it was incompetent and we agree with counsel for the Appellant that it should have been struck out.”
46. Based on the foregoing decision, this court found and held that the client herein had not lodged the appropriate and requisite Notice of objection to taxation, which is a critical, nay essential Document required, before commencement of a Reference.
47. This particular finding and holding by this court, has not been rescinded, discharged and/or quashed. For clarity, this part of the Decision is the subject of the Notice of Appeal. Consequently, that finding holds sway and remains sound.
48. Other than the finding that the Notice of objection to taxation, which was filed was invalid, this honourable court again addressed its legal mind to the issue as to whether a Reference had been filed by the client herein, and it was found and held that no such Reference had indeed been filed.
49. Nevertheless, it is not lost on this court that the Client herein contended before the court then that a Reference had been duly filed and that it was on the basis of such a Reference that the Client had sought for the grant of orders of an Injunction, vide the Application dated 18th March 2021.
50. It is therefore apparent, that the Respondent herein is approbating and reprobating at the same time. Clearly, such kind of conduct, cannot be tolerated and/or sanitized by the court. To the contrary, this Court frowns upon such Conduct.
51. For clarity, the question that one must ask is this, if as at 18th March 2021, the client herein contended and/or believed that same had filed a Reference, then why is the client now seeking for Leave to file a Reference, that they believed to have filed.
52. Secondly, it is important to note, that vide the ruling dated the 14th October 2021, this court made a precipitate finding that the client herein had not filed a Reference and that the allegations that the Reference had been filed, was conscious and deliberate falsehood.
53. From the foregoing, it becomes apparent that the Application for extension of time to file a Reference herein, has been provoked by the Ruling of the court rendered on the 14th October 2021, and thus same is a calculated attempt to circumvent the Ruling, though belatedly.
54. In my humble view, the conduct of the client herein of switching positions and goal posts, from one point to the other, is meant to defraud the cause of justice, and cannot be dignified with exercise of equitable discretion in favor of such a client/litigant.
55. Notwithstanding the foregoing, I must also point out that a Reference can only be filed if a valid and proper Notice of Objection to taxation was filed and/or lodged in line with Rule 11(1) of the Advocates Remuneration Order and not otherwise.
56. However, in respect of the subject matter, I found and held that no valid Notice of objection to taxation had been filed and/or lodged. See the ruling rendered on the 14th October 2021, which has not been set aside.
57. In the absence of a valid Notice of objection to taxation, which is the sine quo non to the filing of a Reference, can a valid reference be filed?
58. In the alternative, can time be extended for the filing of a Reference, where the requisite foundation does not exist, either in the manner sought for by the client herein or at all.
59. My short answer to the questions contained in the two preceding paragraphs is in the negative. Without an appropriate Notice of objection to taxation, any intended Reference, would be still borne and otherwise a nullity.
60. The foregoing notwithstanding, there is still another elephant in the room and this is, a Reference is meant to challenge the Certificate of taxation. So that if the court is convinced that the taxing master erred in the taxation of the bill, then the court can be able to interfere with the taxation. For clarity, the Reference challenges, inter alia, the quantum of costs as taxed and certified by the taxing master.
61. However, in respect of the subject matter, it is important to note that the certificate of taxation which was issued by the taxing master, was the subject of the Application dated 17th March 2021, whereby the Advocate sought for entry of judgment on the basis of the certificate of taxation. For clarity, the said Application was founded on the basis of Section 51(2) of the Advocates Act, Chapter 16 Laws of Kenya.
62. Besides, it is imperative to recall that the said Application was indeed heard and disposed of vide the ruling rendered on the 14th October 2021, whereupon judgment was entered on the basis of the certificate of taxation.
63. In my humble view, upon the entry of judgment in terms of the certificate of taxation, the certificate of taxation ceased to exist as an independent item, in the eyes of the law and same was replaced by the judgment of this Honourable Court.
64. In the premises, one can no longer seek to file a Reference to challenge a certificate of taxation that is non existent. Such a process, would be an act in futility and/or vanity.
65. On the other hand, a Reference and/or intended Reference cannot be made as against the judgment of the court entered on the basis of a certificate of taxation, which essentially becomes subsumed and/ or consummated in the judgment.
66. Be that as it may, I hasten to add that the intended Reference herein, for which leave is being sought, would essentially be inviting the court to seat on an Appeal on the judgment already endorsed pursuant to and in compliance with the provisions of Section 51(2) of the Advocates Act. Such an invite, is contrary to public policy.
67. In any event, courts do not act in vanity and/or futility. Consequently, the certificate of taxation having been subsumed and/or consumed by the judgment, which was endorsed on the 14th October 2021, the subject Application is tantamount to closing the staple long after the horse has bolted.
68. In support of the forgoing position and to fortify the arguments that courts do not act in vain, I invoke and rely in the decision in the case of Kakuta Maimai Hamisi v Peris Pesi Tobiko & 2 others  eKLR, where the Honourable Court of Appeal observed as hereunder;
“So central and determinative is the question of jurisdiction that it is at once fundamental and over-arching as far as any judicial proceeding is concerned. It is a threshold question and best taken at inception. It is definitive and determinative and prompt pronouncement on it, once it appears to be in issue, is a desideratum imposed on courts out of a decent respect for economy and efficiency and a necessary eschewing of a polite but ultimately futile undertaking of proceedings that will end in barren cul de sac. Courts, like nature, in vain must not act and must not sit.”
ISSUE NUMBER 2
Whether the client has laid before the court sufficient basis and/or explanation for the delay to file/commence the Reference within the requisite timelines.
69. The client herein has filed the Application dated the 19th October 2021, and essentially same is seeking for enlargement and/or extension of time, within which to file the Reference against the certificate of taxation issued by the taxing master on the 25th February 2021.
70. Essentially, what the client herein is seeking is exercise of discretion by the court, for purposes of extending time.
71. Suffice it to say, that the court is seized of the requisite jurisdiction to extent and/or enlarge time for the doing of an act, in this case for the filing of the intended Reference , provided however, that the necessary preliminaries, are met.
72. However, before a court of law can extend and/or enlarge time, the claimant is by law required to lay and/or place before the court credible explanations and/or reasons as to why the act in question was not timeously taken and/or complied with.
73. In respect of the subject matter, the client herein was therefore disposed to place before the court, the reasons why the Reference was not filed within the statutory time of 14 days from the date of the lodgment of the Omnibus Notice of objection to taxation and/or from the date of the ruling, whereby the bill of costs was taxed.
74. It is important to restate that where a certificate of taxation has been issued by the taxing master, a Party seeking to challenge the taxation, is obliged to issue and serve a suitable and Complaint Notice of objection to taxation and thereafter the taxing master is obligated to issuing reasons to taxation.
75. Nevertheless, there are instances where the ruling on taxation is complete and comprehensive and same contains the reasons for taxation of the various items.
76. In such a situation, though a notice of objection to taxation must still issue, for as long as the provisions of Rule 11(1) of the Advocate Remuneration Order are still within the statute books, but it would be foolhardy to wait for the reasons to be availed yet such reasons are contained and evident in the Ruling.
77. In my humble view, where the Ruling of the taxing master contains the reason for taxation, then the claimant is obliged to file the Reference, immediately upon receipt and/or coming into contact with the impugned Ruling.
78. Suffice it to say, that the Ruling of the taxing master rendered on the 25th February 2021, and against which the omnibus Notice of objection to taxation dated the 26th February 2021, was issued, contained the reasons for the taxation.
79. In support of the foregoing observation, I adopt and restate the position of the law as espoused in the case of Evans Thiga Gaturu Advocates v Kenya Commercial Bank (2012) eKLR, where the honourable court observed as hereunder;
That brings us to the question of what happens, as the client alleges in this case, where no reasons are given. First, and foremost, the above provisions presuppose that in delivering their decisions on taxation, the taxing officers only pronounce the results of the taxation without the reasons behind them. In most cases, the court is aware that, taxing officers, in their decisions on taxation do deliver comprehensive rulings which are self-contained thus obviating the necessity to furnish fresh reasons, thereafter. In such circumstances it would be foolhardy to expect the taxing officer to redraft another “ruling” containing the reasons. In my view, this is another provision that requires to be looked into afresh. I do not see the reason why the taxing officer cannot be at the time of making his decision to do so together with the reasons therefor.
80. On the other hand, I am also aware that the foregoing position has also received support from the Decision of Hon. Justice G. V. Odunga, Judge, in the case of National Oil Corporation V Real Energy Limited & Another, (2016) eKLR, where the Honourable Judge observed as hereunder;
“In my view there is no magic in requiring the taxing office to furnish reasons before making a reference. Where the reasons are contained in the decision a party ought not to seek the same simply because is fashionable to do so”
81. It is also evident that the said Ruling was within the knowledge of the client herein, as early as the 26th February 2021, when the Notice of objection was filed/lodged.
82. Owing to the foregoing, the question that must thus be addressed is the reason for the inaction on the part of the client herein, based on the fact that the reasons for the taxation were indeed contained in the Ruling and which Ruling was within her custody.
83. In my humble view, it was incumbent upon the client to place before the court satisfactory explanation for the delay and/or inaction, but unfortunately, the entire of the Supporting affidavit sworn by the Clients’ Advocate on record, has neither availed nor espoused any tenable reason for such delay.
84. In the absence of any reason being availed, no sufficient cause can be deemed to have been shown and/or exhibited. Consequently, the court cannot be expected to exercise its discretion in vacuum.
85. Suffice it to say, that he who expects the court to exercise any discretion to his/her favor, must be ready to supply reasons for inaction.
86. In support of the foregoing, I adopt and reiterate the Decision in the case of Nicolas Kiptoo Arap Salat v IEBC & Others (2014) eKLR, where the Honourable Supreme Court observed as hereunder;
“It follows that when considering whether to grant an extension of time for an appeal against a final decision in a case of any complexity, the courts should consider “all the circumstances of the case” including;
a. the interests of the administration of justice;
b. whether the application for relief has been made promptly;
c. whether the failure to comply was intentional;
d. whether there is a good explanation for the failure;
e. the extent to which the party in default has complied with other rules, practice directions and court orders;
f. whether the failure to comply was caused by the party or his legal representative;
g. the effect which the failure to comply had on each party; and
h. the effect which the granting of relief would have on each party.
87. In my humble view, the client herein has not illustrated and/or placed before the court any sufficient cause and/or basis to explain the delay, between the 26th February 2021, when same became aware of the Ruling on taxation, to the 19th October 2021,when the subject Application, was filed.
88. In the absence of any explanation for such delay, it must be taken that the client herein was not keen to propagate her rights. Consequently, the subject application is defeated by the Doctrine of latches.
ISSUE NUMBER 3
Whether the client herein has satisfied the conditions for grant of an order of stay of execution pending the determination of the intended appeal.
89. As pertains to the grant of an order for stay of execution pending the hearing and determination of an Appeal or Intended Appeal, it is important to note that a claimant is obliged to satisfy the following conditions;
i. Existence of sufficient cause.
ii. Filling the application without and reasonable and/or inordinate delay.
iii. Proof of substantial loss, and
iv. Readiness to provide such security as the court may deem appropriate for the due performance of the decree that may ultimately be binding on the applicant.
90. Of the four conditions that an Applicant is obliged to satisfy and/or meet, the central and most critical condition is proof of occurrence of Substantial loss.
91. In respect of the subject matter, it is important to note that the affidavit in support of the Application for stay of execution pending the hearing and determination of the Intended Appeal has been sworn by the Client’ Advocates and not a Representative of the client.
92. Owing to the foregoing, it is difficult to appreciate and/or discern how an Advocate can be able to advert to the issue of Substantial loss, which is Evidentiary in nature and thereby meet the statutory threshold under the law.
93. In my humble view, the facts that my make the client to Suffer prejudice and by extension Substantial loss are solely within the peculiar knowledge of the client and not otherwise.
94. In the circumstances, it is only the duly authorized Representative of the client, who could advert to or swear an affidavit on the issues of Substantial loss. However, that is not the position in respect of the subject matter.
95. In support of the foregoing observation, I can do no better than to invoke the provisions of Section 112 of the Evidence Act, Chapter 80 Laws of Kenya which provides as hereunder;
“112. Proof of special knowledge in civil proceedings
In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.”
96. In any event, the centrality of the issue of Substantial loss was underscored in the Decision in the case of Kenya Shell Limited v Benjamin Karuga & Another (1986) eKLR, where the court stated as follows;
“It is usually a good rule to see if order XLI rule 4 of the Civil Procedure Rules can be substantiated. If there is no evidence of substantial loss to the applicant, it would be a rare case when an appeal would be rendered nugatory by some other event. Substantial loss in its various forms, is the corner stone of both jurisdictions for granting a stay. That is what has to be prevented. Therefore, without this evidence it is difficult to see why the respondents should be kept out of their money.”
97. In my considered view, the client herein has not shown and/or established that same is exposed to suffer any Substantial loss and if so the nature of substantial loss, that may accrue and/or arise.
98. In a nutshell, I have come to the conclusion as hereunder;
i. The Notice of Motion Application dated the 19th October 2021, is not only misconceived, but same is legally untenable.
ii. The Notice of Motion Application dated the 21st October 2021, is devoid of Merits.
99. In the premises, the two Applications herein be and are hereby Dismissed with Costs to the Advocate/Respondent.
100. It is so Ordered.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 9TH DAY OF DECEMBER, 2021.
HON. JUSTICE OGUTTU MBOYA
ENVIROMENT AND LAND COURT.
In the Presence of;
Ms. June Nafula
Mr. Musili for the Advocate/Respondent
Mr. Monda H/B for Mr. Mereka for the Client/Applicant