Issues for determination
15.After careful analysis of the above application and the supporting affidavit, in my view the main issues for determination are:a.Whether the firm of Kavraj Kaur & Associates Advocates ought to be granted leave to come on record for the applicant.b.Whether the applicants have met the prerequisite for grant of stay of execution pending appeal.
16.Order 9 Rule 9 of the Civil Procedure Rules provides:-
17.A perusal of the Application precisely the orders sought show that the firm of Mongeri & Co Advocates was on record for the Applicant. There is no evidence on record that the firm of Kavraj Kaur & Associates Advocates served the aforesaid firm of Mongeri & Co Advocates with the said application for leave and neither is there a consent filed between the outgoing and the proposed incoming advocate in this matter. As such, the firm of Kavraj Kaur & Associates Advocates did not comply with the requirement for leave to come on record for the applicants as required under Order 9 Rule 9 of the Civil Procedure Rules. It was the duty of the new advocate to show the court that it was properly on record, even though the court had already granted him temporary relief, that of stay of execution pending the hearing of the application inter partes.
18.The affidavit of service filed by the said advocate further confirms that the firm of Mongeri and Company Advocates were not served with the application. This is a fatal mistake on the part of the applicant.
19.For reasons of non-compliance with mandatory provisions of the Rules, the order sought for the said law firm to come on record for the applicant is incapable of being granted.
20.There being no orders granted allowing the advocate to take over the matter after judgment, it is my view that the application was filed by a stranger, and ought to be struck out at this stage. However there are authorities that seem to suggest that striking out of such pleadings may not be the only course to be taken by the court at all times.
21.In Violet Wanjiru Kanyiri vs Kuku Foods Limited  eKLR the Court considered a similar situation. It held as follows;
22.There is also an argument that an “appeal” is a new matter and that leave may not be necessary.
23.This was the case in Tobias M. Wafubwa vs. Ben Butali  eKLR, where the court was of this view:
24.Taking cue from the above decisions, I will proceed to look at the other issues raised.
25.The principles upon which the court may stay the execution of orders appealed from are well settled. Order 42 Rule 6 of the Civil Procedure Rules stipulates:
26.Thus under Order 42 Rule 6(2) of the Civil Procedure Rules, an applicant should satisfy the court that:a.Substantial loss may result to him/her unless the order is made;b.That the application has been made without unreasonable delay; andc.The applicant has given such security as the court orders for the due performance of such decree or order as may ultimately be binding on him.
27.These principles were enunciated in Butt vs Rent Restriction Tribunal  the Court of Appeal stated what ought to be considered in determining whether to grant or refuse stay of execution pending appeal. The court said that:-1.The power of the court to grant or refuse an application for a stay of execution is discretionary; and the discretion should be exercised in such a way as not to prevent an appeal.2.Secondly, the general principle in granting or refusing a stay is, if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should the appeal court reverse the judge’s discretion.3.Thirdly, a judge should not refuse a stay if there are good grounds for granting it merely because, in his opinion, a better remedy may become available to the applicant at the end of the proceedings.4.Finally, the Court in exercising its discretion whether to grant or refuse an application for stay will consider the special circumstances and its unique requirements. The court in exercising its powers under Order XLI Rule 4(2) (b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security of costs as ordered will cause the order for stay of execution to lapse.
28.Under the head of substantial loss, an applicant must clearly state what loss, if any, they stand to suffer. This principle was enunciated in the case of Shell Ltd vs Kibiru and Another  KLR 410 Platt JA set out two different circumstances when substantial loss could arise as follows:-
29.The learned judge continued to observe that:-
30.The Applicant in this matter contends that he stands to suffer irreparable damages as his assets will be attached and sold owing to the lapse of 30 days stay period.
31.In James Wangalwa & Another vs Agnes Naliaka Cheseto  eKLR the Court held;
32.It is to be noted that there is no proper appeal filed herein. What the applicant filed was a draft memorandum of appeal, and is only an annexture to the application.
33.It should also be noted that the applicant has not sought leave to have his appeal admitted out of time, as the Judgment was delivered way back in December 2022.
34.The respondent is a valid decree holder and therefore entitled to execution. Merely stating the execution is likely to ensue as there is no stay of execution orders in place is not enough to demonstrate substantial loss.
35.Without an appeal, or application for leave to appeal, the application lacks the solid foundation it needs to warrant the grant of the orders sought.
36.I find that the applicant has failed on this particular limb.
37.On whether the application has been made without unreasonable delay, I have noted from the annexed Judgment that it was delivered on 7th December, 2022 and that neither the applicant nor his advocate was present on the day of the judgment.
38.The present application was filed on 14th March, 2023 close to three months after the date of the Judgment. The Applicant has attributed the delay to breach of process and want of service by the Respondent against the Applicant and lack of communication by his erstwhile advocate regarding this matter and entry of judgement.
39.According to the Respondent, the ex parte proceedings before the lower court were set aside by Parties’ Consent that was adopted on 28th July, 2021 and the matter commenced de novo. That the Applicant participated and even testified as a sole defence witness and as such contention that he was unaware of the proceedings leading to Judgement is misleading.
40.The proceedings of the days in questions has not been annexed for this court to ascertain whether that was the correct position. However, I note that the Applicant has not controverted this position and can only mean that the same is true. In Peter O. Nyakundi & 68 others vs Principal Secretary, State Department of Planning, Ministry of Devolution and Planning & another  eKLR the court stated inter alia that
41.Similarly, in Phillip Tirop Kitur vs Attorney General  eKLR, the Court accepted the affidavit evidence, and ruled that in the absence of a replying affidavit or oral evidence from the Attorney General, the Petitioner’s evidence stood unchallenged.
42.The question of unreasonable delay was dealt with in the case of Jaber Mohsen Ali & another vs Priscillah Boit & Another E & L NO. 200 OF 2012 eKLR where it was stated:
43.The applicant has not explained/demonstrated when he learnt about this matter and when he lost communication with his Advocate on record. I find that three months is too long for a party not to have followed up on his/her matter. In the premises I find that the delay was unreasonable.
44.Regarding the issue of security for costs, the applicant has stated in his supporting affidavit that he is willing to abide by any conditions that the court may impose.
45.The determination of what amounts to a suitable security is a matter of court’s discretion. In Focin Motorcycle Co. Limited v Ann Wambui Wangui & another  eKLR, the court stated that:
46.To succeed, an applicant in the circumstances of the applicant herein must satisfy all the three conditions for grant of stay. The Applicant herein has only succeeded on one limb of his application, that of offering security. The court in Trust Bank Limited vs Ajay Shah & 3 Others,  eKLR at page 23 stated that :-
47.Although the applicant offers security, the question is, what is being litigated upon, since as I stated earlier, there is no proper appeal before the court, or an application for leave to appeal out of time. The lack of that foundation leaves the offer of security in the high seas, so to speak, with no hope of reaching the harbour, which is the determination of the appeal itself.
48.Even if I were to consider the draft appeal as an appeal, I am not certain that it has any chances of success, for the following reasons. The applicant has embarked on a journey of faulting the process in which the judgment was arrived at. He suggests that the process was fraught with non service of the pleadings. What he has not told the court is the fact that indeed the ex parte judgment was set aside and he paid Ksh. 15,000/- ostensibly as thrown away costs, vide a cheque from his erstwhile advocates. That process is not the one that led to the judgment herein. This was as a result of a subsequent full hearing, as stated by the respondent. The applicant has not rebutted these averments. As far as I am concerned, the grounds set out in the draft memorandum of appeal are irrelevant to the issues at hand, a lawful, regular judgment of the trial court.
49.I find that this application is founded on very unstable grounds that cannot hold it afloat.
50.In the end, I find that the application fails in its entirety and is hereby dismissed with costs.
51.The orders of stay of execution of the decree in the lower court that were in force pending the determination of this application are hereby vacated forthwith.