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ELCDismissedNot stated in the judgment as provided· [2019] KEELC 4934 (KLR)

Ecotact Limited t/a Iko Toilets v Nairobi City County [2019] KEELC 4934 (KLR)

High Court of Kenya
23 January 2019
975 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court of Kenya dismissed a county government's request to pause execution of a judgment because it neither proved substantial loss nor offered security.

What this practically means

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Executive summary

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This was a ruling on a Notice of Motion dated 6th December 2018 in which the defendant/applicant, through the affidavit of David Oseko, the acting County Attorney, sought a stay of execution of a ruling and order made on 4th December 2018 pending the filing of an application in the Court of Appeal, having filed a notice of appeal. The application was brought under Sections 1A, 1B, 3, 3A, 63(c) and (e) of the Civil Procedure Act and Order 42 rule 6(2) of the Civil Procedure Rules 2010, and was opposed by the plaintiff/respondent through grounds of opposition dated 18th December 2018 on the basis that the issues had already been canvassed and the ingredients for stay had not been met. Komingoi J restated the settled principles governing stay pending appeal: that the application be brought without undue delay, that substantial loss be demonstrated, and that security for due performance of the decree be offered. While accepting that the application was brought without undue delay, the court found the applicant had failed to demonstrate that the respondent would be unable to compensate it should the appeal succeed, and that it had neither stated an intention to furnish nor actually furnished security, a condition expressed in mandatory terms. Relying on the Feissal Amin Janmohammed and Machira authorities, the court found the application devoid of merit and dismissed it, with costs of the application to be in the cause.

Key legal issues

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01

Whether the conditions for stay of execution under Order 42 rule 6(2) were met

Holding

The application was made without undue delay, but the applicant failed to demonstrate substantial loss and did not offer security; the application was dismissed.

Reasoning

The court set out the three settled principles for stay pending appeal: no undue delay, substantial loss, and security. It accepted the application was brought timeously but found the applicant failed to show the respondent could not compensate it if the appeal succeeded, and noted the applicant had neither stated an intention to furnish nor furnished security. The security condition is mandatory, so the application failed.

p. 2

Legal principles established

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  • Stay of execution requires demonstration of substantial loss, absence of unreasonable delay, and offer of security; mere assertion of substantial loss is insufficient.

Court orders

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  1. 1.The notice of motion dated 6th December 2018 is dismissed
  2. 2.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3, 3A, 63(c) and (e)
  • Civil Procedure Rules 2010Order 42 rule 6(2)

Cases cited (2)

  • Feissal Amin Janmohammed t/a Dunvia Forwarders vs Shami Trading Co Ltd
    Mombasa HC Civil Appeal No 65 of 2013 [2014] eKLR
  • Machira t/a Machira & Co. vs East African Standard
    [2002] 2 KLR 63
Jurisdiction invoked
Sections 1A, 1B, 3, 3A, 63(c) and (e) of the Civil Procedure Act and Order 42 rule 6(2) of the Civil Procedure Rules 2010

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, "Ecotact Limited t/a Iko Toilets v Nairobi City County [2019] KEELC 4934 (KLR)", Case Analysis (2019). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4934/eng@2019-01-23

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