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Court of AppealPartially AllowedCivil Application No. Nai. 53 of 2000 (24/00 UR)

EXPRESS KENYA LIMITED & ALI BAKARI ALI vs M. M. J. KISOSO [2000] KECA 236 (KLR)

Court of Appeal
6 June 2000
323 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal stayed execution of a judgment, but only if the judgment debtor deposited most of the money in a joint account within 14 days.

What this practically means

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Executive summary

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This is a short ruling of the Court of Appeal at Nairobi (Akiwumi, Tunoi and O'Kubasu, JJ.A) on an application by Express Kenya Limited and Ali Bakari Ali for stay of execution of a judgment of the High Court of Kenya at Nairobi (Hayanga, J) dated 21 December 1999 in H.C.C.C. No. 2865 of 1993, pending an intended appeal. The decree-holder, M. M. J. Kisoso, responded through a replying affidavit in which he did not object to the decretal sum being deposited in a joint account in the names of both advocates. The court declined to characterise the respondent as a man of straw who would be unable to repay if the appeal succeeded. It also bore in mind that some claims for special damages, notably the cost of a new vehicle to replace the one damaged in the road accident, had not been specifically pleaded. Balancing these considerations, the court granted a conditional stay: the decretal amount, less the Kshs. 6,000,000/- awarded as special damages for the replacement of the respondent's damaged car, was to be deposited in an interest-bearing bank account in the joint names of the advocates for both sides within fourteen days and to remain there until the intended appeal was determined. Failure to deposit within the fourteen days would render the stay void. Costs were made costs in the appeal. The ruling cites no authorities or statutory provisions and was delivered as one judgment of the whole court. Its binding significance lies in its illustration of the conditional-stay approach: tailoring the secured amount to doubtful heads of damages and providing for automatic lapse on default.

Questions the Court framed

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

  1. 1.Whether the respondent, as decree-holder, is a man of straw who would be unable to repay the decretal sum if the intended appeal succeeds.
  2. 2.Whether stay of execution of the High Court decree should be granted pending the intended appeal and, if so, on what conditions, given that some claims for special damages were not specifically pleaded.

Key legal issues

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01

Whether the decree-holder would be able to repay the decretal sum if the intended appeal succeeds (the 'man of straw' inquiry).

Holding

The respondent was not a man of straw; he would be able to disgorge what had been paid to him if the appeal succeeded, and he did not object to the decretal sum being deposited in a joint account in the names of both advocates.

Reasoning

In deciding the terms upon which a stay of execution should issue pending an intended appeal, the court examined the decree-holder's capacity to repay the decretal sum. It rejected the applicants' characterisation of the respondent as a man of straw, which removed the principal ground for insisting that the whole decretal fund be secured or for refusing stay outright. The respondent's own replying affidavit, indicating no objection to the decretal sum being held in a joint account pending the appeal, reinforced the court's view that a conditional stay securing the fund would balance the interests of both sides.

p. 2
02

What conditions of stay are just where a head of special damages was not specifically pleaded.

Holding

The decretal amount, less the Kshs. 6,000,000/- awarded as special damages for the replacement of the respondent's damaged car, was to be deposited in an interest-bearing account in the joint names of both advocates within 14 days, pending determination of the intended appeal.

Reasoning

The court tailored the security to the perceived strengths and weaknesses of the intended appeal. Because the claim for the cost of a replacement vehicle had not been specifically pleaded, the court treated that head of special damages as sufficiently doubtful to be excluded from the sum to be secured. The balance of the decretal amount was to be held in an interest-bearing account in the joint names of both advocates, protecting the decree-holder against dissipation of the fund while preserving the money for repayment if the appeal ultimately succeeded.

p. 2
03

The consequence of failure to comply with the deposit condition within the time fixed.

Holding

The stay granted would become void if the deposit was not made within the 14 days; costs of the application were made costs in the appeal.

Reasoning

The court attached an automatic lapse mechanism to its order rather than leaving enforcement to further application. By providing that non-compliance within the stipulated fourteen days would render the stay void, the court ensured that the decree-holder would not be left indefinitely without execution while the applicants delayed compliance. The order also directed that the costs of the application would be costs in the intended appeal, deferring the question of costs until the appeal itself was determined.

p. 2

Legal principles established

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  • A stay of execution pending appeal may be granted on condition that the applicant deposits the decretal amount in an interest-bearing account in the joint names of the advocates on both sides, and the stay lapses automatically if the deposit is not made within the time fixed by the court.
  • In fixing the terms of a stay, the court may exclude from the secured amount any head of special damages that was not specifically pleaded, treating that head as doubtful.
  • The decree-holder's capacity to repay the decretal sum if the appeal succeeds (whether he is a man of straw) is a material consideration in deciding the terms of a stay.

Court orders

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  1. 1.Stay of execution of the decree in H.C.C.C. No. 2865 of 1993 granted, conditional upon the applicant depositing the decretal amount minus Kshs. 6,000,000/- (the special damages awarded for replacement of the respondent's damaged car) in an interest-bearing bank account in the joint names of the advocates for the applicant and the respondent within 14 days, there to remain until determination of the intended appeal.
  2. 2.The stay granted to become void if the deposit is not made within the 14 days.
  3. 3.Costs of the application to be costs in the intended appeal.

The bench

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

majority
majority
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 2865 of 1993
Jurisdiction invoked
Not expressly stated in the ruling. The Court of Appeal determined a civil application for stay of execution in an intended appeal from the High Court (Civil Application No. Nai. 53 of 2000 (24/00 UR)).

Relief refused

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A stay of execution without any condition as to security (in so far as an unconditional stay was sought)

The court found the respondent was not a man of straw and would be able to repay if the appeal succeeded, and therefore granted the stay only upon the applicants depositing the decretal amount less the Kshs. 6,000,000/- special damages within 14 days.

p. 2

Costs

Cost will be in the 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.

In the circumstances, what seems to be just to us is that by way of stay of the execution of the decree in this matter, the decretal amount minus the Kshs.6,000,000/- awarded as special damages for the replacement of the respondent's damaged car, be deposited by the applicant in an interest bearing bank account in the joint names of the advocates of the applicant and the respondent within 14 days from today until the determination of the applicant's intended appeal.
p. 2Final orders - conditional stay with deposit of the decretal amount less unpleaded special damages
Failure to make the deposit within the 14 days will render the stay granted herein void. Cost will be in the appeal.
p. 2Final orders - automatic lapse of the stay on default and costs in the appeal
We are not convinced that the respondent is a man of straw who would if the appellant's appeal succeeds, not be able to disgorge what has been paid to him.
p. 2Decree-holder's ability to repay as a consideration for stay
He also in his replying affidavit does not seem to mind if the decretal sum is deposited in the joint names of his advocate and that of the applicant, pending the disposal of the intended appeal.
p. 2Decree-holder's lack of objection to deposit of the decretal sum in a joint account
We also bear in mind that some claims for special damages such as the cost of a new vehicle to replace the one damaged in the road accident, were not specifically pleaded.
p. 2Unpleaded special damages excluded from the secured amount

Issues in the judgment

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minor

The ruling refers to 'the appellant' and 'the applicant' interchangeably although the parties are styled 'applicants' and 'respondent' in this stay application in an intended appeal; the references are to the same party (Express Kenya Limited and Ali Bakari Ali).

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, "EXPRESS KENYA LIMITED & ALI BAKARI ALI vs M. M. J. KISOSO [2000] KECA 236 (KLR)", Case Analysis (2000). Civil Application No. Nai. 53 of 2000 (24/00 UR). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/236/eng@2000-06-06

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