By Andrew Kariuki

Advocate Cecil Miller mounted a strong challenge in the Court of Appeal against attempts to proceed with settlement of terms in a high-stakes commercial dispute, arguing that the process should be halted pending determination of an application seeking certification to move the case to the Supreme Court.

Appearing before Hon. Justice Christine Atieno Ogweno, Cecil Miller, alongside Dudley Ochiel and Peter Wena, represented Nyanja Holdings Limited and other respondents, while Ms. Sheila Ndiho appeared for the 4th Respondent, Red Mars Holding Limited, and Ms. Kabura (holding brief for Mr. Kadima) appeared for the appellants.

The matter is scheduled for April 21, 2026 before a three-judge bench of the Court of Appeal, where the court will determine whether the case meets the threshold for certification to the Supreme Court.

Addressing the court on a preliminary issue, Cecil Miller urged that the settlement of terms be adjourned, warning that proceeding at this stage would undermine the pending certification application.

“Proceeding with settlement of terms now would render the certification application nugatory,” he submitted, noting that the hearing was only two working days away.

He told the court that no prejudice would be suffered by the appellants if the matter was briefly adjourned, adding that the property in dispute was not at risk.

“There is no risk to the property in dispute and no prejudice to the appellants. Any prejudice can be compensated by costs if certification fails,” Miller argued.

He urged the court to defer the settlement process until the full bench determines whether the matter proceeds to the Supreme Court.

The proceedings also exposed a dispute over legal representation, with Dudley Ochiel raising concern that opposing counsel continued to serve documents on former advocates, creating uncertainty on who was properly on record.

He urged the court to issue a clarification on representation before any further steps are taken.

In response, the court referred to an affidavit of service dated April 1, 2026, noting that the emails used for service had been previously acknowledged.

Ms. Sheila Ndiho, appearing for the 4th Respondent, opposed the adjournment, arguing that service had been properly effected and that the objection was a delay tactic.

“The appellants did not seek stay of execution. Settlement of terms is independent of the certification application,” she told the court, urging that the process proceed without delay.

Ms. Kabura, appearing for the appellants, confirmed that they had been served with the draft order on February 5, 2026 and had accepted the terms without any amendments.

In reply, Cecil Miller maintained that proper service had not been effected, stating that the email cited for service had not been received.

“The email cited for service was never received, including spam folders,” he said.

The dispute traces back to a High Court ruling that nullified a private treaty sale of charged property and made findings of fraud, which are now under challenge in the Court of Appeal.

The appeal raises questions on whether the trial court determined issues that were not pleaded, failed to consider key evidence and improperly handled findings of fraud and contractual obligations.

The case, which arises from financial arrangements involving lending facilities, securities and the exercise of statutory power of sale, continues to test procedural fairness and the limits of judicial intervention in commercial disputes.

The Court of Appeal is expected to give further directions as parties await the outcome of the certification application, which will determine whether the matter proceeds to the Supreme Court.