Industrial and Commercial Development Corporation v Daber Enterprises Limited
The bottom line
#Kenya's Court of Appeal stopped enforcement of a Shs. 11.8 million judgment, confirming money decrees can be paused pending appeal when circumstances justify it.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal was arguable
The appeal was arguable: whether the respondent's request for extension of time amounted to a variation of the contract, whether the offer of sale was revoked, and whether special damages of Shs. 11,800,000 were strictly provable were all matters fit for trial.
The court found it arguable that the respondent's request for more time to pay the balance sought to vary the contract terms, and that what was agreed between Mr. Mbai and the Deputy Corporation Secretary was a matter for trial. It was also arguable whether the offer of sale was revoked. On damages, the judgment rested on a third party's offer to purchase, which would require cross-examination.
Whether the appeal would be rendered nugatory absent a stay
Yes - the amount at stake exceeded Shs. 12,000,000, the respondent was not shown to be a company of means, and the applicant corporation was substantial enough to repay if the respondent ultimately succeeded.
The onus lay on the applicant to show that money paid would not be recoverable. The respondent had needed time to raise Shs. 2.4 million and did not rebut the applicant's statement of 'no known assets'. Counsel for the respondent did not seek time to file a replying affidavit. The court was satisfied the applicant could pay any decretal amount if the appeal failed.
Whether stay of a money decree can be granted
The general rule against stay of money decrees has been modified; a stay may be granted in respect of money decrees where the circumstances demand.
Counsel for the respondent relied on Kenya Shell Limited v Karuga & Another for the proposition that stay of a money decree is not normally granted. The court held that this authority had at the very least been modified by Kenindia Assurance and Nairobi Duluxe Services, which permit stay of money decrees where circumstances demand.
Legal principles established
#- On a rule 5(2)(b) application the applicant must show an arguable appeal and that the appeal would be rendered nugatory if the order sought is not granted.
- Special damages must be strictly proved and are deemed traversed unless specifically admitted.
- A stay of execution may be granted even in respect of money decrees if the circumstances of the case so demand.
Court orders
#- 1.Stay of execution of the decree in the High Court granted until the determination of the intended appeal
- 2.Costs of the application to be in the intended appeal
- On appeal from
- High Court of Kenya at Nairobi, Milimani
- H.C.C.C. No. 113 of 1999
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (application for stay of execution pending intended appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Industrial and Commercial Development Corporation v Daber Enterprises Limited", Case Analysis (1999). Civil Application No. NAI. 223 of 1999 (89/99UR). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1999/146/eng@1999-09-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.