Kenya Power and Lighting Co Ltd v Kigaita Ngare Unduthu & 51 others [2019] KEELC 1389 (KLR)
The bottom line
#A Kenyan court refused to pause payment of a Ksh 10 million-plus judgment because losing money on a money decree is not 'substantial loss'.
What this practically means
#Executive summary
#Key legal issues
#Substantial loss under Order 42 Rule 6(2)(a)
The Applicant's pleaded loss of over Ksh 10,000,000 was monetary loss capable of being quantified and refunded, and did not amount to substantial loss; the Respondents own land and have sources of income
The court adopted the Mukuma v Abuoga and Kenya Shell v Kibiru formulations that substantial loss is what has to be prevented by preserving the status quo. The decretal sum of over Ksh 10,000,000 was to be shared among 36 Respondents who own land and therefore have sources of income and could refund the sum if the appeal succeeded. The court noted it is not its duty to deny successful litigants the fruits of their judgment.
Whether the application was brought without unreasonable delay
The application was filed on 15th April 2019, the day the 45-day stay granted by the trial court lapsed, and was therefore brought without undue delay
The court perused the record and found judgment was delivered on 14th March 2019; the Applicant obtained stay in the trial court and filed the present application on 15th April 2019 when that stay lapsed. This second condition was satisfied.
Provision of security for due performance of the decree
Although the Applicant expressed willingness to furnish security, having found no substantial loss, the issue of security was not applicable since a stay order would serve no purpose
The Applicant had undertaken to deposit reasonable security as the court might determine, which would have addressed the Respondents' concern about due performance. However, because the court had already found no substantial loss, the stay could not be granted, rendering the security question academic.
Legal principles established
#- Mere monetary loss on a money decree does not constitute substantial loss for purposes of stay of execution under Order 42 Rule 6(2)
- Poverty or lesser means of a decree-holder is not a ground for denying a person the right to enjoy the fruits of their judgment
- Financial ability of a decree-holder alone is not a reason for allowing stay; it is enough that the decree-holder is not a dishonourable miscreant without any form of income
- In exercising the discretion on stay, courts should apply the overriding objective and opt for the lower rather than the higher risk of injustice
Court orders
#- 1.The Applicant/Appellant's Notice of Motion dated 15th April 2019 is denied and dismissed with costs to the Respondents
- 2.The Appellant/Applicant shall lodge his Appeal against the decree of the lower Court within 14 days from that date
- 3.Upon filing of the memorandum of appeal, the Applicant shall prepare, file and serve his record of appeal within 45 days
- On appeal from
- Nyahururu Chief Magistrate's Court
- Civil Suit No. 256 of 2006
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 79G of the Civil Procedure Act; Order 42 Rules 6 and 7 of the Civil Procedure Rules (appellate jurisdiction over subordinate court decree)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Power and Lighting Co Ltd v Kigaita Ngare Unduthu & 51 others [2019] KEELC 1389 (KLR)", Case Analysis (2019). Not stated in the extract (application dated 15th April 2019 arising from Nyahururu Chief Magistrate's Court Civil Suit No. 256 of 2006). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1389/eng@2019-10-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.