Automated Summary
Key Facts
This case involves a dispute between Tarmal Wire Products Ltd (Plaintiff) and Aberdare Steel & Hardware Ltd (Defendant) regarding an application by the Defendant to stay the execution of a money decree pending appeal. The Defendant argued the appeal is arguable and that allowing execution would render the appeal nugatory, but the court found no substantial loss demonstrated and the security offered (a title deed from a third party) insufficient. The application was dismissed due to unreasonable delay and failure to meet legal requirements for a stay.
Issues
- The Defendant offered to deposit an unverified title document as security, but the court rejected it due to lack of ownership confirmation and valuation. The Plaintiff emphasized the need for tangible security like partial payment or a financial guarantee under Order 42 Rule 6(2)(b).
- The Defendant argued that its appeal is merited and likely to succeed, citing errors in the trial court's decision, including failure to consider constitutional rights (Articles 25(c), 48, and 50) and premature adjudication on merits before trial.
- The court found the Defendant's application was filed after an unreasonable delay of over 8 months post-ruling, with no justification provided. The Defendant attempted to rely on Florence Hare Mkaha v Pwani Tawakal Mini Coach [2014] eKLR but failed to establish comparable special circumstances.
Holdings
- The court dismissed the Defendant's application for a stay of execution pending appeal, finding that the application was filed with unreasonable delay. The Defendant failed to justify the eight-month delay between the delivery of the ruling (11th December 2019) and the filing of the application (11th August 2020), and did not provide a valid explanation for the delay despite the Plaintiff's arguments.
- The court found the security provided by the Defendant (a title document for a property) inadequate. The title deed for NYANDARUA/WANJOHI/1240 (2.02Ha) was registered in the name of a Director (Solomon Ngechu) who is a separate legal entity from the Defendant. No valuation report or confirmation of current ownership was provided, rendering the security insufficient for the decretal sum.
- The court determined that the Defendant did not demonstrate substantial loss that would occur if the stay was not granted. The Defendant's argument that the appeal might be rendered nugatory due to difficulty in recovering the decretal sum (Kshs. 21,221,177.00 plus interest) was insufficient, as they failed to provide evidence of the Plaintiff's inability to refund the amount if the appeal succeeded.
Remedies
- The Defendant's Notice of Motion dated 15th August 2020 is dismissed as it lacks merit
- Each party is directed to bear their own costs associated with the application
Monetary Damages
21221177.00
Legal Principles
The court emphasized that the applicant for a stay of execution must demonstrate substantial loss with specific evidence, rather than relying on general assertions. The burden remains on the applicant to prove the respondent's inability to refund the decretal sum if the appeal succeeds.
Precedent Name
- Butt v Rent Restriction Tribunal
- Florence Hare Mkaha v Pwani Tawakal Mini Coach & Another
- Amal Hauliers Limited v Abdulnasir Abukar Hassan
- Winfred Nyawira Maina v Peterson Onyiego Gichana
- Housing Finance Company of Kenya v Sharok Kher Mohamed Ali Hirji & Another
- Mufi & 2 Others v Ho/a Mkando Omar & Another
Cited Statute
- Constitution of Kenya 2010
- Civil Procedure Act
Judge Name
G.W. Ngenye-Macharia
Passage Text
- The upshot is that the Defendant's Notice of Motion dated 15th August, 2020 lacks merit and the same is dismissed.
- "The ordinary principle is that a successful party is entitled to the fruits of his judgment...If it comes to pass, the applicant is likely to suffer substantial injury by letting the other party proceed further..."
- I find that the Defendant has not demonstrated any substantial loss that it stands to suffer absence the order of stay sought.