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Court of AppealPartially AllowedCivil Application No NAI 15 of 1990

Halai & Another v Thornton & Turpin (1963) Ltd

Court of Appeal
8 May 1990
JGJ.E. GicheruZCZ.R. ChesoniACA.M. Cockar
2,202 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed it can pause a judgment's enforcement on flexible terms, but only after a Notice of Appeal is actually filed.

What this practically means

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Executive summary

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The applicants sought a stay of execution under rule 5(2)(b) of the Court of Appeal Rules against a High Court judgment (Shields J, 6 February 1990) awarding the respondent, a sub-contractor, Kshs 2,429,340 plus costs. The High Court had granted a three-week stay conditional on deposit of the decretal amount into a joint interest-bearing account, which the applicants contended was onerous and tantamount to refusal. The Court of Appeal held that its discretion under rule 5(2)(b) is unfettered and not confined to the Order XLI rule 4 conditions governing the superior court; security for due performance is not a mandatory pre-condition, the only pre-condition being the filing of a Notice of Appeal under rule 74, without which the court has no jurisdiction. The court found substantial loss established (the decree would render the statutory right of appeal nugatory), no unreasonable delay, and no mala fides inferable from the record. However, it declined to accept the immovable properties offered as security because no registry searches or valuation reports supported the deponed ownership and values. It granted a stay pending determination of the appeal on condition that the applicants deposit a banker's bond for Kshs 3 million in addition to the existing Kshs 600,000 bond, failing which within thirty days the respondent could execute. Costs of the application were to abide the result of the intended appeal. The decision varied the High Court's stay conditions.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicants satisfied the criteria for a stay of execution under rule 5(2)(b) of the Court of Appeal Rules
  2. 2.Whether the terms imposed by the High Court were onerous and tantamount to refusing the stay
  3. 3.What security was adequate to protect the respondent's fruits of judgment

Key legal issues

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01

Scope of the Court of Appeal's discretion under rule 5(2)(b)

Holding

The discretion is wide and unfettered; the court may grant a stay even where no substantial loss is established and no security is forthcoming, if it seems just

Reasoning

Order XLI rule 4 of the Civil Procedure Rules mainly governs applications before the superior court. Applications to the Court of Appeal fall under rule 5(2)(b), whose discretion is unfettered. The court considers substantial loss, adequate security and expeditious filing, but is not bound to refuse a stay where substantial loss or security is absent if justice so requires.

p. 2
02

Jurisdictional pre-condition of a filed Notice of Appeal

Holding

The court is seized of a rule 5(2)(b) application only after a Notice of Appeal is filed under rule 74; without it there is no jurisdiction even on an intending appellant's assurance

Reasoning

The court exercises original jurisdiction under rule 5(2)(b) once a Notice of Appeal is lodged under rule 74. The applicants initially lacked a copy of the Notice of Appeal in the record and the application had to be adjourned until it was included, confirming the jurisdictional nature of the requirement.

p. 3
03

Adequacy of security offered

Holding

Immovable property offered as security could not be accepted without search abstracts and valuation reports; a banker's bond for the decretal sum was the appropriate security

Reasoning

The supporting affidavit lacked Lands Registry search abstracts proving ownership and valuation reports supporting the estimated values, making it too risky to accept the properties as security for over Kshs 3 million. The court directed a banker's bond for Kshs 3 million, which would protect the respondent's ability to realise judgment if the appeal failed.

p. 3
04

Prospect of success as a criterion

Holding

Assessing the appeal's chances of success is not a requirement under rule 5 in a stay application

Reasoning

Although the applicants' affidavit asserted good prospects of success, the court held that with only a notice of appeal before it, the chances cannot be assessed, and that this is not a requirement under rule 5 for a stay. The relevant considerations are substantial loss, security, delay and whether the appeal would be rendered nugatory.

p. 3

Legal principles established

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  • The Court of Appeal's discretion under rule 5(2)(b) is unfettered and is not confined to the Order XLI rule 4 conditions governing the superior court
  • Jurisdiction to entertain a rule 5(2)(b) stay application arises only upon filing of a Notice of Appeal under rule 74
  • Security for due performance of the decree is not a mandatory pre-condition under rule 5; the only pre-condition is filing of a notice of appeal
  • A successful litigant is entitled to the fruits of judgment, which may be withheld only for a just cause

Court orders

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  1. 1.Stay of execution of the decree in HCCC No 4811 of 1986 pending determination of the appeal
  2. 2.Applicants to deposit in Court a banker's bond for Kshs 3 million besides the banker's bond for Kshs 600,000 already given
  3. 3.If the bond is not deposited within thirty days, the respondent at liberty to execute the decree
  4. 4.Costs of and incidental to the application to abide the result of the intended appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

JG
majority

Wrote the judgment

ZC
majority

Wrote the judgment

AC
majority

Wrote the judgment

On appeal from
High Court at Nairobi
HCCC No 4811 of 1986
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, exercisable only after a Notice of Appeal is filed under rule 74

Relief refused

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Stay conditioned on deposit of the decretal amount in cash into a joint account

Court accepted property-backed banker's bond as adequate security instead; cash deposit would not avail respondent before appeal determination

p. 3

Costs

The costs of and incidental to this application shall abide the result of the intended appeal.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Application for stay of execution is made to this court under rule 5(2)(b) of the Court of Appeal Rules and this court’s discretion under that rule is unfettered.
p. 2Scope of rule 5(2)(b) discretion
This court becomes seized of the matter only after the Notice of Appeal has been filed under rule 74.
p. 3Jurisdictional pre-condition
All that is required as a pre-condition for the exercise of our discretion under rule 5 is that a notice of appeal has been filed.
p. 3Security not a mandatory pre-condition
It is equally important to remember that a successful litigant is entitled to the enjoyment of the fruit of his judgment, which he can be deprived only for a just cause.
p. 3Fruits of judgment
Accordingly, for the reasons we have given, there shall be a stay of execution of the decree in the HCCC No 4811 of 1986 pending the determination of the appeal therefrom on condition that the applicants deposit in Court a banker’s bond for Kshs 3 million besides the banker’s bond for Kshs 600,000 already given.
p. 4Final orders - stay granted on security conditions

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (15)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Halai & Another v Thornton & Turpin (1963) Ltd", Case Analysis (1990). Civil Application No NAI 15 of 1990. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1990/65/eng@1990-05-08

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