Automated Summary
Key Facts
The Applicant, Bahari (T) Company Limited, sought a stay of execution of a Kshs.3,994,968.60 decree pending appeal to the Mombasa Court of Appeal. The court granted the stay on 7th October 2020, requiring the Applicant to deposit a motor vehicle logbook (KHMA602G) as security and file the appeal within 90 days. The Respondent, Alibhai Ramji Investment Limited, opposed the stay, arguing the Applicant had previously failed to secure a stay in 2019 and that the offered machinery security was unreliable due to depreciation.
Issues
- The court considered whether to grant a stay of execution of the judgment pending the hearing of the appeal, balancing the applicant's potential substantial loss against the respondent's right to enforce the judgment.
- The court balanced the applicant's right to access the appellate system against the respondent's right to enforce the judgment, considering the potential injustice of denying the appeal.
- The court evaluated the applicant's assertion that they would suffer substantial loss if the stay wasn't granted, considering the impact of the COVID-19 pandemic on their business.
- The court assessed whether the applicant's offer to deposit a logbook of machinery valued at Kshs.4 million met the required security conditions under Order 42 Rule 6 of the Civil Procedure Rules.
Holdings
The court granted the Applicant's Notice of Motion application dated 20th March 2019 for a Stay of Execution pending the Appeal. The conditions include depositing the original logbook of Motor Vehicle KHMA602G within 30 days, allowing the Respondent to conduct a valuation, filing the Record of Appeal within 90 days, and costs abiding the appeal outcome. The court emphasized that the Applicant's offer to provide security (machinery logbook) satisfied the requirement for due performance of the decree.
Remedies
- The costs of the application shall abide by the outcome of the Appeal.
- The Appellant shall deposit into court the original logbook in respect of Motor Vehicle KHMA602G within thirty (30) days from today together with signed transfer forms.
- The Appellant is directed to file and serve its Record of Appeal within ninety (90) days from today.
- The Respondent be at liberty to do a valuation of the subject property to ascertain its current value.
Monetary Damages
3994968.60
Legal Principles
The court applied the principle that a stay of execution pending appeal is generally granted if the applicant demonstrates substantial loss, acts without unreasonable delay, and provides sufficient security. This aligns with CPR Order 42 Rule 6, which requires courts to balance the applicant's right to appeal with the respondent's right to enforce judgment. The security must guarantee the decree's performance without punishing the judgment debtor, and the court emphasized the importance of preserving the status quo to prevent appeals from becoming nugatory.
Precedent Name
- Feissal Amin Janmohammed T/A Dunvia Fowarders Vs Shami Trading Co. Ltd
- Arun C Sharma Vs Ashana Raikundalia T/A Rairundalia & Co. Advocates
- Siegfried Busch Vs MCSK
Cited Statute
- Constitution of Kenya
- Civil Procedure Rules
Judge Name
D. O Chepkwony
Passage Text
- "...Where the Applicant proposes to provide security as the Applicant has done, it is a mark of good faith that the application for stay is not just meant to deny the Respondent the fruits of Judgment..."
- 19. For the foregoing reasons, the upshot of this court's decision was that the Appellant's Notice of Motion application...is merited and the same is hereby allowed in terms of Prayer No.3 on the following conditions...
- "The purpose of the security needed under Order 42 is to guarantee the due performance of such decree or order as may ultimately be binding on the applicant..."