Case ID:168250

Oseko & Ouma Advocates LLP v Samuel Gachie Kamiti [2020] eKLR

Case Metadata

Case Number:

Civil Application 121 of 2020

Parties:

Oseko & Ouma Advocates LLP v Samuel Gachie Kamiti

Date Delivered:

18 Dec 2020

Case Class:

Civil

Court:

Court of Appeal at Nairobi

Case Action:

Ruling

Judge(s):

Roselyn Naliaka Nambuye, Wanjiru Karanja, Fatuma sichale

Citation:

Oseko & Ouma Advocates LLP v Samuel Gachie Kamiti [2020] eKLR

Case History:

(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))

Court Division:

Civil

County:

Nairobi

History Docket No:

Civil Suit No. 64 of 2019 (OS))

History Judges:

Francis Tuiyott

History County:

Nairobi

Case Outcome:

Application disallowed

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

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

*********************************

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:-

(i) The motion dated

5

th

August, 2020

is disallowed.

(ii) The applicant shall bear the costs of this application.

Dated and Delivered at Nairobi this 18

th

Day of December, 2020.

R.N. NAMBUYE

..................................................

JUDGE OF APPEAL

W. KARANJA

....................................................

JUDGE OF APPEAL

F. SICHALE

...................................................

JUDGE OF APPEAL

I certify that this is a true

copy of the original.

Signed

DEPUTY REGISTRAR