Kenya Commercial Finance Co Ltd v Nyaana Saw Mills [1986] KECA 81 (KLR)
The bottom line
#Filing an appeal in Kenya does not stop a judgment from being enforced — courts only shield a debtor with security if a stay of execution is actually granted.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether security should be provided for the decretal sum of shs 148,904.60
- 2.Whether security should be provided for costs estimated at shs 55,000
- 3.Whether provision should be made for the costs of the application and intended appeal
Key legal issues
#Whether security for the decretal sum should be ordered pending an intended appeal brought after extension of time
Refused; the remedy under the rules is execution by the decree-holder or security for due performance if a stay is granted
The judge applied Order XLI Rule 4 of the Civil Procedure Rules, noting that the plaintiff had not executed the judgment and there was no stay of execution. Because an intended appeal does not operate as a stay, the plaintiff can secure itself by execution or, if a stay is ordered, by security for due performance. Requiring security for the decretal sum from the applicant bank itself was therefore inconsistent with the aim of Rule 4 of the Court of Appeal Rules.
Whether the offer of security for costs was reasonable in the circumstances
Yes; the intending appellant to deposit shs 2,000 under the rules plus an additional shs 8,000 within 30 days
Counsel took specific instructions before making the offer of security. Considering the reason for the application, the facts of the case and the circumstances of the intending appellant, the court found the offer reasonable. The application was granted on the second prayer, with the first and third prayers refused, and costs made costs in the cause.
Legal principles established
#- An intended appeal does not operate as a stay of execution; a decree-holder may execute, or where a stay is ordered, security for due performance of the decree may be required
Court orders
#- 1.The applicant bank may either execute the decree or, if a stay is ordered, the defendant will give security for due performance
- 2.The second prayer for security granted: the intending appellant to deposit the usual shs 2,000 at the appropriate time under the rules, and an additional shs 8,000 on or before the 30th day from the date of the order
- 3.The first prayer (security for the decretal sum) found not appropriate and refused
- 4.The third prayer (costs of the application and intended appeal) refused as too burdensome on the intending appellant
- 5.Costs of the application to be costs in the cause of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order XLI Rule 4 of the Civil Procedure Rules and Rule 4 of the Court of Appeal Rules
- Consolidated with
- Civil Application No 30 of 1986 (defendants' application for leave to appeal out of time, referred to)
Relief refused
#Security for the decretal sum of shs 148,904.60
Inconsistent with the aim of Rule 4 of the Court of Appeal Rules since the plaintiff can protect itself by execution or by security for due performance
Provision for costs of the application and intended appeal
Would be too heavy a burden on the intending appellant
Costs
The costs of the application will be costs in the cause of the appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
the plaintiff can either take execution (since the appeal intended does not operate as a stay) or if a stay is ordered, the defendant will have to give security for his due performance of the decree
I will grant the application on the second prayer. The first prayer I find not appropriate. The third I find would tax the intending appellant too much.
The costs of the application will be costs in the cause of the appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Commercial Finance Co Ltd v Nyaana Saw Mills [1986] KECA 81 (KLR)", Case Analysis (1986). Civil Application No NAI 109 of 1986. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1986/81/eng@1986-06-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.