Jogoo Kimakia Bus Services Ltd v Electrocom International Ltd [1985] KECA 78 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed it can halt execution until the judgment-creditor actually receives the money, even after a court broker collects sale proceeds.
What this practically means
#Executive summary
#Key legal issues
#Whether legal completion of execution bars a stay
It does not; the court may stay execution so long as the proceeds of sale have not reached the judgment-creditor in his hands.
The court distinguished Davis & Shirtliff, holding that where the warrant directs the court broker to pay proceeds into court, the broker owes a duty to the court and has a defence to a claim for money had and received by producing the warrant. Since steps remained before the judgment-creditor obtained his money, a stay could in principle be ordered on a factual basis.
Jurisdiction to grant the stay
The application was made under rule 5(2)(b) of the Court of Appeal Rules, conferring a special, unfettered discretion on the Court of Appeal.
Although Order XLI rule 4 of the Civil Procedure Rules was available after the High Court dismissed the first application, the applicant invoked rule 5(2)(b), which allows the court to grant a stay on such terms as it thinks just, bearing in mind substantial loss, delay, security, and the principle that an appeal must not be rendered nugatory.
Whether delay barred the stay application
The delay of roughly a month between execution and the stay application was not such as to bar the application, though the applicant had to bear the costs thrown away.
The court weighed the timeline: judgment on June 27, 1984, notice of appeal in July, execution processed, and the stay application filed within about a month of execution being applied for. The delay, though chargeable in costs, was neither so great that the application could not be effective nor such as to cause great harm.
Whether the appeal would be rendered nugatory
Yes in part: sale of the buses, valued far in excess of the debt and deteriorating, would cause great potential loss to the applicant, warranting a conditional stay of their sale.
The court compared the assets at stake: Kshs 155,000 in cash against a debt of some Kshs 330,000, and buses worth about Kshs 600,000 covering only Kshs 175,000, in a ratio of nearly three to one. The respondent's financial position was precarious and unproven, and the strongest part of the respondent's judgment lay in the sums above Kshs 137,100.
Legal principles established
#- The Court of Appeal retains control over the proceeds of sale until the judgment-creditor actually receives them, and may order a stay of execution up to that point notwithstanding that execution is technically complete when the court broker receives the proceeds.
- An application for a stay under rule 5(2)(b) of the Court of Appeal Rules is governed by the court's special and unfettered discretion, exercised on the general principle that an appeal must not be rendered nugatory.
Court orders
#- 1.The Kshs 65,000 received by the court broker be deposited in an interest-bearing account
- 2.The court broker to pay over the Kshs 90,000 into court, to be placed in an interest-bearing account
- 3.The sale of the buses be stayed unless the respondent raises their attachment in exchange for other satisfactory security
- 4.No security for restitution or for due performance of the decree ordered
- 5.Costs of the application to the applicant, but the respondent to have the costs thrown away by the applicant's delay
- 6.The last orders amended to reflect consent orders relating to the Shs 90,000 held by the court broker and the Shs 15,000 deducted for his fees and charges
- On appeal from
- High Court
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (inherent jurisdiction under rule 1(3))
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Agricultural Finance Corporation v Galgalo Jarso Jillo[2025] KECA 2068 (KLR)5 Dec 2025applied
Cite this brief
#Cite this brief
Caselaw, "Jogoo Kimakia Bus Services Ltd v Electrocom International Ltd [1985] KECA 78 (KLR)", Case Analysis (1985). Civil Application (as stated in judgment, not numbered). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1985/78/eng@1985-11-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.