TAI JEAN GARMENTS COMPANY LIMITED,NARESH DARBAR & BHUPENDRA DARBAR vs VIYAY MORJARIA [2000] KECA 327 (KLR)
The bottom line
#Kenya's Court of Appeal paused collection of a Shs. 16 million judgment because the judge seemingly ignored Shs. 9 million the debtor had already repaid.
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 intended appeal is arguable, in particular whether the learned Judge erred in failing to give the applicants credit for Shs. 8,979,040/= which the respondent admitted he had been paid.
- 2.Whether, on the material before the Court, this is a proper case for an order of stay of execution of the judgment and decree of Rimita J. pending the intended appeal, and on what conditions.
Key legal issues
#Whether the intended appeal is arguable.
Yes. The apparent failure by the trial Judge to give the applicants credit for Shs. 8,979,040/= which the respondent admitted he had been paid, despite a pleaded claim for Shs. 16,000,000/=, is an arguable point which the applicants should be allowed to canvass in the appeal.
The respondent's claim as pleaded was for Shs. 16,000,000/=. Counsel for the applicants identified the learned Judge's apparent failure to give credit for Shs. 8,979,040/= which the respondent admitted he had been paid by the applicants. The Court observed that the learned Judge had not explained why he disregarded that payment. An unexplained disregard of an admitted payment goes to the substance and quantum of the decree and is therefore capable of forming a viable ground of appeal, satisfying the arguability threshold for a rule 5(2)(b) application.
Whether it is a proper case for stay of execution of the High Court judgment pending the intended appeal, and on what terms.
Yes. The Court granted the application for stay on condition that the applicants execute a bank guarantee in the sum of Shs. 7,000,000/= within 30 days; in default the application stands dismissed with costs.
The Court was satisfied on the material before it that this was a proper case for an order of stay. Rather than requiring security for the full decretal sum of Shs. 16,000,000/=, it conditioned the stay on a bank guarantee of Shs. 7,000,000/= to be executed within thirty days, balancing the applicants' right to pursue their appeal against the respondent's interest in the decree. Default in furnishing the security would result in dismissal of the application with costs, and costs of the application were made costs in the intended appeal.
Legal principles established
#- An unexplained failure by the trial court to give a judgment debtor credit for a payment the decree holder admits he has received is an arguable point sufficient to sustain a rule 5(2)(b) application for stay pending appeal.
- The Court of Appeal may grant a stay of execution conditional upon the applicant furnishing security by way of a bank guarantee within a fixed period, with the application standing dismissed with costs in default.
Court orders
#- 1.Application for stay of execution of the judgment and decree of Rimita J. given on 4th October 2000 granted.
- 2.Stay conditional upon the applicants executing a bank guarantee in the sum of Shs. 7,000,000/= within 30 days from 23rd November 2000.
- 3.In default of executing the bank guarantee, the application to stand dismissed with costs.
- 4.Costs of the application to be in the intended appeal.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (application for stay of execution pending 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.
Accordingly we grant the application and order that as a condition for the stay the applicants shall execute a bank guarantee in the sum of Shs. 7,000,000/= within 30 days from today.
In default the application to stand dismissed with costs.
Costs of the application to be in the intended appeal.
The learned Judge has not explained why he disregarded that payment. This is an arguable point which the applicants should be allowed to canvass in the appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "TAI JEAN GARMENTS COMPANY LIMITED,NARESH DARBAR & BHUPENDRA DARBAR vs VIYAY MORJARIA [2000] KECA 327 (KLR)", Case Analysis (2000). Civil Miscellaneous Application No. 316 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/327/eng@2000-11-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.