Automated Summary
Key Facts
Kimfy East Africa Limited sought a stay of execution for a Kshs.1,304,500 judgment against them, pending an appeal. The lower court's judgment (CMCC No. 2856 of 2013) was delivered on 21 January 2022, with the appeal filed on 1 February 2022. The applicant argued it would suffer substantial loss if the stay wasn't granted and claimed the appeal has a higher chance of success. The respondent, Ben Sichana, opposed the stay, stating he needed the funds for medical care and that the appeal lacks merit. The court granted the stay on 17 June 2022, requiring the applicant to deposit the decretal sum in a joint account within 45 days.
Issues
- The court considered the applicant's motion to stay execution of a Kshs.1,304,500 judgment pending appeal. Key issues included the applicant's claim of substantial loss if the stay is denied, the respondent's inability to refund the decretal sum if the appeal succeeds, and compliance with Order 42 rule 6(2) of the Civil Procedure Rules requiring proof of potential loss and timely filing. The applicant argued the lower court's judgment had glaring inconsistencies and that the respondent needed the funds for medical care, which the court found indicative of inability to refund.
- The court evaluated if the applicant's motion, filed one month after the lower court's January 2022 judgment, was made without unreasonable delay. The applicant filed the appeal promptly after the judgment, which the court deemed sufficient to satisfy the requirement under Order 42 rule 6(2)(a) that applications for stay of execution must be made without unreasonable delay.
- The court addressed the applicant's willingness to deposit the entire decretal sum in a joint interest-earning account as security. The respondent argued against this, but the court ruled that the applicant's offer met the security requirement under Order 42 rule 6(2)(b), granting the stay on condition of depositing the funds within 45 days.
Holdings
- The court determined that the respondent failed to disclose any income sources to refund the decretal amount if the appeal succeeds. The respondent's assertion of medical need further confirms his inability to refund the sum, shifting the evidential burden to the respondent to demonstrate financial capacity.
- The court found the motion to be meritorious and allowed it, granting an order for stay of execution pending the appeal. The stay is conditional upon the appellant depositing the entire decretal sum in an interest-earning account in the joint names of the advocates within 45 days. In default, the stay order shall automatically lapse.
- The applicant satisfied the requirement of filing the motion without unreasonable delay, having filed the appeal one month after the lower court's judgment. The court noted the applicant's readiness to furnish security for the decree's due performance, ensuring the respondent's interests are protected.
Remedies
- Costs of the motion to abide the outcome of the appeal
- the motion dated 1st February 2022 is found to be meritorious and is allowed. Consequently, an order for stay of executions pending appeal is granted on condition that the appellant deposits the entire decretal sum in an interest earning account in the joint names of the advocate and/or firms of advocates appearing in this appeal within 45 days. In default the order for stay of execution shall automatically lapse.
Monetary Damages
1304500.00
Legal Principles
The court applied the principles under Order 42 rule 6(2) of the Civil Procedure Rules requiring (a) satisfaction that substantial loss may result to the applicant unless the stay is granted and no unreasonable delay, and (b) provision of security for the decree. It also referenced the evidential burden shifting to the respondent to demonstrate their ability to refund the decretal sum if the appeal succeeds, as established in National Industrial Credit Bank Limited v Aquinas Francis Wasike.
Precedent Name
- Stanley Karanja Wainaina & another v Ridon Anyangu Mutubwa
- National Industrial Credit Bank Limited v Aquinas Francis Wasike & another
Cited Statute
Civil Procedure Rules
Judge Name
JK Sergon
Passage Text
- No order for stay of execution shall be made under subrule (1) unless- (a) the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and (b) such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.
- In the end the motion dated 1st February 2022 is found to be meritorious and is allowed... on condition that the appellant deposits the entire decretal sum in an interest earning account... within 45 days. In default the order for stay of execution shall automatically lapse.
- The Respondent has not disclosed any source of income that he would use to refund the applicant the decretal amount should the appeal succeed... the respondent's averment that he is in dire need of money for medical care, can only confirm that he will not be able to refund the decretal sum were the applicant's appeal to succeed.