Jethwa v Shah t/a Supreme Styles [1989] KECA 66 (KLR)
The bottom line
#The Court of Appeal refused a stay of execution, confirming that a Kenyan applicant must prove the other side cannot repay — not just claim it.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant was entitled to a stay of execution of the decree and taxed costs pending the intended appeal
- 2.Whether the intended appeal, if successful, would be rendered nugatory
- 3.Whether the applicant discharged the burden of proving the respondent's impecuniosity
Key legal issues
#Requirements for stay of execution of a money decree pending appeal
An applicant with a money decree against him must show the appeal would be rendered nugatory and that the respondent is impecunious; mere assertion of impecuniosity is insufficient.
The court reiterates that a stay preserves the subject matter so a successful appeal is not nugatory. Where the decree is monetary, the applicant must adduce concrete facts and figures showing the respondent cannot repay; bare affidavits of dealings do not discharge that burden, and the respondent need not prove financial health.
Burden of proof on impecuniosity
The burden lies throughout on the applicant and never shifts to the respondent to prove a healthy financial position.
Applying the evidentiary rule that the burden of proof as to a fact lies on the person who wishes the court to believe in its existence, the court held the applicant ought to have furnished facts and figures of his dealings with the respondent, and the respondent was under no obligation to produce bank statements.
Effect of lodging a Notice of Appeal
Lodging a Notice of Appeal or instituting an appeal per se does not operate as a stay of execution or proceedings.
The court disposed of the applicant's reliance on Halsbury's Laws, holding that filing a Notice of Appeal does not stay execution, which is why an application under rule 5(2)(b) is required; the cited paragraph was irrelevant.
Legal principles established
#- An applicant for stay must show the appeal will be rendered nugatory and, for a money decree, that the respondent is impecunious
- The burden of proving impecuniosity lies on the applicant and does not shift to the respondent
Court orders
#- 1.The Notice of Motion is dismissed
- 2.The costs of the Notice of Motion shall be costs in the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court at Nairobi
- HCCC No 1943 of 1988
- Jurisdiction invoked
- Rules of this Court, rule 1(3) and rule 5(2)(b)
Relief refused
#Stay of execution of the decree and taxed costs pending the intended appeal
The applicant failed to demonstrate that the appeal would be rendered nugatory or that the respondent was impecunious
Costs
The costs of the Notice of Motion shall be costs in the intended 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.
Generally, an applicant in these circumstances would be entitled to an order of stay of execution to preserve the subject-matter so that the appeal if successful is not rendered nugatory.
The burden was all the time on the applicant to prove as required that the respondent is impecunious.
For these reasons, we think there is no merit in the Notice of Motion which is ordered to be dismissed. The costs of the Notice of Motion shall be costs in the intended appeal.
Issues in the judgment
#The judgment does not name the parties in the copy supplied; the applicant and respondent are referred to only by role
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jethwa v Shah t/a Supreme Styles [1989] KECA 66 (KLR)", Case Analysis (1989). Civil Application (Rule 5(2)(b)) arising from HCCC No 1943 of 1988. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1989/66/eng@1989-07-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.