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Court of AppealPartially AllowedCourt of Appeal Civil Application (Nairobi) - application under Rule 5(2)(b) filed 28th March, 1990

International Laboratory for Research on Animal Diseases v Kinyua [1990] KECA 61 (KLR)

Court of Appeal of Kenya
25 May 1990
1,040 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed it can freeze a judgment payment pending appeal without proving special circumstances, but the money must be safely parked with lawyers.

What this practically means

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Executive summary

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This is a single-judgment decision of the Court of Appeal at Nairobi (Masime, Chesoni and Cockar, Ag JA) delivered on 25th May 1990 on an application under Rule 5(2)(b) of the Court of Appeal Rules for stay of execution pending an intended appeal against a High Court judgment of 20th December 1989 awarding the respondent, a former employee, Kshs 145,000/- less tax plus costs and interest. The High Court had already dismissed the applicant's earlier stay application. The applicant relied on an affidavit deposing to a reasonable and justifiable apprehension that, if the judgment sum was paid out, it would be unlikely to recover it from the respondent if the appeal succeeded. The respondent, relying on Order 41 of the Civil Procedure Rules, the English Supreme Court Practice, Halsbury's Laws, Atkins v Great Western Railway and Kenya Shell Ltd v Kibiru, argued that special or exceptional circumstances had to be deponed to and that mere apprehension was insufficient. The court held that in a Rule 5(2)(b) application it is not bound by the Order 41 considerations applicable in the High Court and enjoys an unfettered discretion to grant a stay provided it is just; no proof of special or exceptional circumstances is required. The respondent bore the onus of rebutting by evidence the claim of his impecuniosity, and produced none. A partial stay was granted: the decretal amount less three months' salary and statutory deductions was to be deposited in a joint interest-bearing account within 21 days, failing which the respondent could execute. Costs were made to abide the appeal.

Key legal issues

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01

Whether special or exceptional circumstances must be proved before a stay is granted under Rule 5(2)(b) of the Court of Appeal Rules

Holding

No such requirement exists; the court has an unfettered discretion to grant a stay provided it is just to do so.

Reasoning

Counsel for the respondent relied on the English Supreme Court Practice, Halsbury's Laws of England and case law to argue that a stay requires special circumstances deponed to on affidavit. The court rejected this, holding that those considerations derive from Order 41 of the Civil Procedure Rules, which binds only the High Court. Under Rule 5(2)(b) the Court of Appeal exercises an unfettered discretion governed only by what is just.

p. 2
02

Whether the applicant demonstrated that the appeal would be rendered nugatory if the stay was not granted

Holding

Yes; the sworn apprehension that the money might not be recoverable from the respondent if squandered sufficed in the absence of rebuttal evidence of the respondent's means.

Reasoning

The supporting affidavit deposed to a reasonable and justifiable apprehension that the firm would be unlikely to recover the judgment sum if it passed into the respondent's hands. The court held that this allegation called for rebuttal evidence from the respondent, which was not forthcoming: neither of the replying affidavits contained evidence of the respondent's means. By contrast, in Kenya Shell Ltd the respondent had produced evidence of his financial position. The respondent's own emphasis on the hardship of deprivation of the fruits of judgment cut against his claim of solvency.

p. 2

Legal principles established

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  • The Court of Appeal, in an application under Rule 5(2)(b), is not bound by the considerations prescribed in Order 41 of the Civil Procedure Rules which govern the High Court; it has an unfettered discretion to grant a stay provided it is just to do so.
  • Proof of special or exceptional circumstances is not a requirement for the grant of a stay under Rule 5(2)(b).
  • A judgment debtor who asserts that the judgment creditor's impecuniosity would render a successful appeal nugatory is entitled to have that assertion tested; the onus lies on the judgment creditor to rebut it by evidence.

Court orders

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  1. 1.Stay of execution granted in respect of the whole of the decretal amount less three months' salary less statutory deductions
  2. 2.The balance of the judgment sum to be deposited in an interest bearing savings account in the joint names of the advocates for the parties within 21 days from the date of the ruling
  3. 3.In default of such deposit, the respondent to be at liberty to execute the decree
  4. 4.Costs of the application to abide the result of the intended appeal
On appeal from
High Court of Kenya
null (not stated in judgment)
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "International Laboratory for Research on Animal Diseases v Kinyua [1990] KECA 61 (KLR)", Case Analysis (1990). Court of Appeal Civil Application (Nairobi) - application under Rule 5(2)(b) filed 28th March, 1990. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1990/61/eng@1990-05-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.