Murgor & Murgor Advocates v Kenya Pipeline Company Limited
(Miscellaneous Petition 15 of 2020) [2022] KEHC 17119 (KLR)
(Constitutional and Human Rights) (16 December 2022) (Ruling)
Neutral citation: [2022] KEHC 17119 (KLR)
REPUBLIC OF KENYA
IN THE HIGH COURT AT NAIROBI (MILIMANI LAW COURTS)
CONSTITUTIONAL AND HUMAN RIGHTS
MISCELLANEOUS PETITION 15 OF 2020
AC MRIMA, J
DECEMBER 16, 2022
BETWEEN
MURGOR & MURGOR ADVOCATES .................................................. ADVOCATE
AND
KENYA PIPELINE COMPANY LIMITED .................................................... CLIENT
RULING
Introduction
1. Murgor & Murgor Advocates, the applicant/advocate herein, instituted the notice of motion
application dated July 16, 2021, (hereinafter ‘the application’). It is supported by the adavit of Eva
Kala deposed to on a similar date.
2. The application was precipitated by this court’s ruling of July 1, 2021 that dismissed the applicant/
advocate’s application dated October 12, 2020 which sought to disqualify the rm of Mohammed
Muigai LLP from representing Kenya Pipeline Company Limited, the client/respondent herein in
taxation proceedings on account of conict of interest.
3. The application sought the following orders;
1. Spent.
2. Spent
3. That this honourable court be pleased to grant a stay of the taxation proceedings pending
the hearing and determination of the advocates/applicant’s intended appeal to the Court of
Appeal, against the ruling dated July 1, 2021.
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4. That the cost of this application do abide the results of the intended appeal.
4. The applicant sought stay of procedings before the taxing master on the basis that it had led a notice
of appeal dated July 7, 2021.
5. It was its case that the intended appeal raises arguable points and if this court fails to grant stay of
proceedings, the appeal shall be rendered nugatory because the rm of Mohammed Muigai LLP shall
continue to represent the client/respondent to its great prejudice.
6. The applicant further stated that the stay ought to be granted to avert substantial prejudice that would
be occasioned to it, which could not be atoned by damages, in the event the be appeal was allowed.
7. The applicant stated that the application had been made timeously and was in the interest of justice
and fairness that it is allowed so as not to render the intended appeal nugatory.
The Submissions
8. In its written submissions dated September 8, 2021, the advocate/applicant submitted that it was not
legally proper for the rm of Mohammed Muigai LLP to represent the client/respondent herein in the
taxation proceedings since it was conicted.
9. It was the applicant/advocate case that the application for stay of proceedings was properly before the
court for having been instituted under order 42 rule 6 of the Civil Procedure Rules which allow for stay
of proceedings where there is an order to that eect from the court appealed from.
10. Support to the foregoing legal position was drawn from the decision in Imperial Bank Limited (In
Receivership) & 2 others -vs- Alnashir Popat & 17 others (2017) eKLR where the court spoke to the
import of order 42 of the Civil Procedure Rules.
11. In rebutting the client/respondent’s allegation that the applicant/advocate was undeserving of the
prayers sought on account of non-compliance with the Taxation Master’s orders of July 21, 2020, it
was submitted that the facts alluded to were a distortion of facts and extraneous and irrelevant to the
determination of the instant application.
12. It was submitted that, as established in the case of Global Tours & Travels Limited, Nairobi Winding
Up Cause No 43 of 2000 the applicant had satised the requirements needed for the stay of
proceedings. In the case it was observed;
“ And I considering those matters, it should bear in mind such factors as the need for
expeditious disposal of cases, the prima facie merits of the intended appeal, in the sense of
not whether it will probably succeed or not but by whether it an arguable one, the scarcity
and optimum utilization of judicial time and whether the application has been brought
expeditiously.”
13. Further reference was made to the decision in Imperial Bank Limited (in receivership & 2 others -vs-
Alnashir Popat & 17 others where the following factors were set out;
i. That there is sucient cause to order stay, that it, that substantial loss would ensue from a
refusal to grant stay.
ii. That the application was brought without delay.
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14. It was submitted that the court ought to exercise discretion in a manner that would prevent an appeal,
if successful, from being rendered nugatory. Reference to that end was made to the Court of Appeal
decision in Butt -vs- Rent Restriction Tribunal (1979) eKLR where it was observed;
15. It has been said that the court as a general rule ought to exercise its best discretion in a way so as not
to prevent the appeal if successful from being nugatory.
16. It was submitted that the issue of conict of interest ought to be determined since its continuance will,
in the event of success, will irreparably cause prejudice.
17. On the issue of time, it was submitted that the application was led on July 16, 2021, 3 days after the
applicant was issued with a certied copy of the ruling.
The Client/ Respondent’s Case
18. The client respondent opposed the application through grounds of opposition dated July 27, 2021.
19. It was its case that the application sought to further unjustiably delay in the taxation of the bill of costs
after ling of the notice of motion application dated October 12, 2020 and another dated November
12, 2020 which are still pending hearing and determination before the Deputy Registrar.
20. It was its case further that it was inequitable to grant stay of proceedings on account of the applicant’s
non-compliance with directions and orders issued by the Deputy Registrar of July 21, 2020 for the
ling of the applicant. Advocates further adavit and submissions in support of the bill of costs despite
no orders of stay of taxation proceedings being in place to the ling of the application.
21. It further was its case that it was unjust to grant stay of proceedings on account of the respondent/
client’s compliance with the directions and orders issued by the Deputy Registrar of July 21, 2021
through the ling of the replying adavit sworn by Stanley Manduku on August 26, 2020 and written
submissions dated August 26, 2020 both led on August 31, 2020 in response to the bill of costs.
22. It was its case that the application is incompetent, misconceived and abuse of the court process and no
justiable basis has been laid to make this court exercise its discretion.
23. It was urged the court to dismiss it with costs.
Submissions
24. In its written submissions dated October 24, 2021, the client/respondent rst stated that the power of
the court to grant stay is discretionary to be exercised in the interest of justice.
25. On the principle of substantial loss, it was submitted that court should nd persuasion in the decision
in Muri Mwaniki & Wamiti Advocates -vs- Wings Engineering Services Limited (2020) eKLR where
it was observed that;
“ A court in considering whether to grant or refuse an application for stay is empowered to
see whether there exist any special circumstances which can sway the discretion of the court
in a particular manner. But the yardstick is for the court to balance or weigh the scales of
justice by ensuring that an appeal is not rendered nugatory while at the same time ensuring
that a successful party is not impeded from enjoyment of the fruits of his judgment."
26. While referring to the decision in Machira t/a Machira & Co Advocates -vs- East African Standard
(2002) eKLR it was submitted that it was the duty of an applicant to demonstrate substantial loss to
be suered.
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27. The client/respondent challenged the claim that the appeal would be rendered nugatory should the
application not be stayed by relying on the decision in Stanley Kangethe Kinyanjui -vs- Tony Ketter &
5 others (2013) eKLR.
28. It was its case that whether or not an appeal will be rendered nugatory depends on whether or not what
is sought to be stayed, if allowed to happen, is reversible or if it is not reversible, whether damages will
reasonably compensate such party.
29. It was its case that any harm that would be occasioned to the applicant/advocate would be reversed since
the respondent client will be entitled to appoint another rm of advocates to continue the taxation
proceedings to nality.
30. It was submitted further that the applicant has not demonstrated any special circumstances for the
grant of stay of taxation proceedings.
31. In the end it was urged that the application be dismissed.
Analysis & Determination
32. From the foregoing respective parties’ rival positions, the only issue that arises for determination is
whether the application meets the threshold for stay of proceedings.
33. To that end, I will look at the law and the principles as developed by courts that guide the process.
34. Order 42 rule 6 of the Civil Procedure Rules provides for stay of execution or proceedings in the
following terms;
“ (1) No appeal or second appeal shall operate as a stay of execution or proceedings
under a decree or order appealed from except appeal case of in so far as the court
appealed from may order but, the court appealed from may for sucient cause
order stay of execution of such decree or order, and whether the application
for such stay shall have been granted or refused by the court appealed from,
the court to which such appeal is preferred shall be at liberty, on application
being made, to consider such application and to make such order thereon as
may to it seem just, and any person aggrieved by an order of stay made by the
court from whose decision the appeal is preferred may apply to the appellate
court to have such order set aside."
35. In Kenya Wildlife Service -vs- James Mutembei (2019) eKLR, the court, in reference to Halsbury’s Laws
of England 4th edition vol 37 page 330 and 332, discussed stay of proceedings in the following manner;
“ The stay of proceedings is a serious, grave and fundamental interruption in the right that a
party has to conduct his litigation towards the trial on the basis of the substantive merits of
his case, and therefore the court’s general practice is that a stay of proceedings should not
be imposed unless the proceeding beyond all reasonable doubt ought not to be allowed to
continue.”
This is a power which, it has been emphasized, ought to be exercised sparingly, and only in
exceptional cases.”
It will be exercised where the proceedings are shown to be frivolous, vexatious or harassing or
to be manifestly groundless or in which there is clearly no cause of action in law or in equity.
The applicant for a stay on this ground must show not merely that the plainti might not,
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or probably would not, succeed but that he could not possibly succeed on the basis of the
pleading and the facts of the case”.
36. The consequence of staying proceedings and the high calling placed upon an applicant for its grant was
ttingly discussed in Kenya Wildlife Service -vs- James Mutembei (supra), when the Court observed
as follows;
“ Stay of proceedings should not be confused with stay of execution pending appeal. Stay of
proceedings is a grave judicial action which seriously interferes with the right of a litigant
to conduct his litigation. It impinges on right of access to justice, right to be heard without
delay and overall, right to fair trial. Therefore, the test for stay of proceeding is high and
stringent”.
37. In Kenya Shell Kenya Ltd -vs- Kibiru & another [1986] KLR 410 the Court of Appeal remarked that
the tenets of order 42 must be substantiated by a party seeking stay. The learned judges identied
substantial loss as the cornerstone for the grant of stay by remarking as hereunder;
“ It is usually a good rule to see if order XLI rule 4 (now order 42 rule 6) 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 cornerstone of both jurisdictions for granting stay.
That is what has to be prevented."
38. Further to the foregoing, in David Morton Silverstein vs Atsango Chesoni (2002) eKLR the Court of
Appeal made the following clarication in respect to stay of proceedings;
“ The court is not laying down any principle that no order for stay of proceedings will ever
be made; that would be contrary to the provisions of rule 5 (2) (b) of the court's own rules.
But as the court pointed out in the case we have already cited, each case must depend on its
own facts and the facts of this particular case before us, as were the facts in the earlier case,
do not show that the appeal will be rendered nugatory if we do not grant a stay”.
39. From the outset, it is common ground that the application was instituted timeously.
40. Therefore, the only issues to consider, whilst applying the foregoing principles are whether substantial
loss has been demonstrated and whether the appeal will be rendered nugatory should the taxation
proceedings be allowed to proceed.
41. As established in the foregoing authorities, substantial loss is evidence based.
42. In her adavit deposed to on July 16, 2021, Eva Kala gave evidence detailing the source and nature of
conict of interest the rm of Mohammed Muigai LLP had in respect of the taxation proceedings.
43. She drew the nexus between prejudice to be suered by continued representation of the client/
respondent by Mohammed Muigai LLP as occasioned by conict of interest.
44. She was categoric there will be substantial loss and will not be in the interests of justice and prudent
use of judicial time to allow the taxation proceedings to proceed at the same time as the appeal.
45. As pointed out by the Court of Appeal in Kenya Shell Kenya Ltd -vs- Kibiru & another [1986] KLR
410, substantial loss exists in various forms. To the extent that there is the possibility of the Court of
Appeal barring Mohammed Muigai LLP from representing the client/respondent, substantial loss in
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the form of delay, expense and hardship is is likely to be visited, not only upon the parties but also on
the court’s time. There would be wasteful use of judicial time if taxation is allowed to proceed.
46. I nd that the foregoing runs contrary the overring objective in disposal of civil disputes which places
an obligation upon courts to focus on meeting the ends of justice without unreasonable delay, expense
and hardship to the parties.
47. In Civil Application No Nai 173 of 2010, Abdirahman Abdi also known as Abdirahman Muhumed
Abdi v Safi Petroleum Products Ltd & 6 others, the Court of Appeal spoke to the foregoing principles
as follows;
“ The overriding objective in civil litigation is a policy issue which the court invokes to obviate
hardship, expense, delay and to focus on substantive justice…”
48. Coming back to the issue of substantial loss, the court in Machira t/a Machira & Co Advocates -vs-
East African Standard No 2 (2002) KLR spoke to it in the following terms;
“ In attempting to convince a court that substantial loss is likely to be suered so that whatever
he intends to achieve by his intended recourse to some other authority will be nugatory if
ultimately, he prevails, the applicant is under a duty to do more than merely repeating to
the court words of the relevant statutory rule or general words used in some judgment or
ruling of a court in a decided case cited as a judicial precedent to guide. It is not enough
merely to state that substantial loss will result, or that the appeal if successful will be rendered
nugatory. That will not do."
49. In view of the wider interests of justice, it is my nding that the advocate/applicant has attained the
high and stringent test for the grant of stay. (See Machira t/a Machira & Co Advocates -vs- East African
Standard (2002) eKLR and Kenya Wildlife Service -vs- James Mutembei (2019) eKLR.)
50. On the issue whether the appeal will be rendered nugatory in the event it is successful, it was the
applicant/advocate’s case that damages could not suciently atone the prejudice it will have suered.
51. The client/respondent’s rival view was that any harm that would be occasioned to the applicant/
advocate would be reversed since the respondent/client will be entitled to appoint another rm of
advocates to continue the taxation proceedings to nality.
52. The Black’s Law Dictionary 11th edition Thomson Reuters Publishers, denes the term ‘nugatory’ as
follows;
“ of no force or eect; useless; invalid”
53. The question that arises is, in the special circumstances of the dispute, will the appeal be of no force,
eect, useless and invalid, in the event it is successful?
54. The circumstances of this case are that, if stay is not granted, taxation will proceed before taxing
master. Whereas that scenario seems to favour expeditious disposal of the case, in the event the appeal
is successful and by that time the taxation proceedings are over, the outcome of the appeal will indeed
be rendered nugatory.
55. The client/respondent’s position that the rm of Mohammed Muigai LLP will be changed is simplistic
as it fails to consider far reaching implications of not granting the stay. Essentially therefore, in the event
the appeal is successful, it will be of no force or eect, if by that time, taxation proceedings would have
been completed and executed.
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56. The foregoing nds favour on the decision in Machira t/a Machira & Co Advocates -vs- East African
Standard No 2 (2002) KLR where Kuloba J as he then was observed as follows;
“ A court will not order a stay upon a mere speculation; there must be the clearest ground of
necessity or execution, if he shows facts which point to a conclusion that to allow execution
or further proceeding to go ahead before appeal concluded would let an impecunious party
to pocket and squander or pilfer what may be needed in restitution if appeal succeeds and
is allowed. Another common factor is favour of the applicant is whether to proceed further
or to execute may destroy the subject matter of the action and deprive the appellant or
intended appellant of the means of prosecuting the appeal or intended appeal. So really, stay
is normally not to be granted, save in exceptional circumstances."
57. I nd that the applicant/advocate’s circumstances align with foregoing requirements as to render
nugatory the intended appeal if it succeeds.
Disposition
58. In the end, nd that the application meets the minimum requirements for the grant for stay of
proceedings and the following nal orders herby issue;
i. The application dated July 16, 2021 is allowed and an order is hereby issued staying taxation
proceedings.
ii. Costs of the application to be in the appeal.
59. It is so ordered.
DELIVERED, DATED AND SIGNED AT KITALE THIS 16TH DAY OF DECEMBER, 2022.
A. C. MRIMA
JUDGE
Ruling virtually delivered in the presence of: -
Mr. Murgor SC and Miss Kala Learned Counsel for the Applicant/Advocate
Miss Ngige Learned Counsel for the Client/Respondent.
Kirong/Regina – Court Assistants.
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