Kamu Ventures Limited v Paul Mungai Mwangi [2019] KEELC 1301 (KLR)
The bottom line
#The High Court dismissed a stay of execution because the applicant proved no substantial loss, offered no security, and filed an invalid notice of appeal.
What this practically means
#Executive summary
#Key legal issues
#Whether the conditions for grant of stay of execution under Order 42 rule 6(2) were met
The application satisfied the no-undue-delay condition but failed on substantial loss and security; the application was dismissed
The court found the application was brought without undue delay, but the applicant failed to show the respondent could not compensate him if the appeal succeeded, and he did not attach a draft memorandum of appeal to demonstrate an arguable intended appeal. He also failed to state whether he intended to furnish or had furnished security for due performance of the decree, a mandatory condition.
Whether the defendant's counsel was properly on record under Order 9 rule 9
The consent to come on record was dated 29th May 2018, after the notice of appeal of 25th May 2018; the notice of appeal was therefore invalidly filed by an advocate not properly on record
The court examined the filed consents, one bearing two dates, and found the clerk's explanation of the discrepancy unconvincing. Taking the front date as the operative one, the consent postdated the notice of appeal, rendering the filing by the incoming firm invalid under Order 9 rule 9 of the Civil Procedure Rules.
Legal principles established
#- A stay of execution pending appeal is granted only where the applicant demonstrates substantial loss, that the application was made without unreasonable delay, and that security for due performance of the decree has been offered
- A party cannot merely assert substantial loss; the specific loss must be detailed and particularised
- Under Order 9 rule 9, a change of advocate after judgment requires an application with notice or a consent filed between the outgoing and incoming advocates; a notice of appeal filed by an advocate not properly on record is invalid
Court orders
#- 1.The notice of motion dated 13th June 2018 seeking stay of execution is dismissed
- 2.Each party to bear its own costs
- Jurisdiction invoked
- Order 42 rule 6 and Order 51 rules 1-3 of the Civil Procedure Rules; Sections 1A, 1B and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kamu Ventures Limited v Paul Mungai Mwangi [2019] KEELC 1301 (KLR)", Case Analysis (2019). Not stated in the judgment as extracted. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1301/eng@2019-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.