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ELCPartially AllowedNairobi Civil Appeal No 499 of 2019 (arising from suit judgment of 22/9/2017)· [2020] KEELC 938 (KLR)
Kipkai Enterprises v Maurine Louise Osembe [2020] KEELC 938 (KLR)
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·~4 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#This ruling by Eboso J of the High Court at Nairobi determined a notice of motion dated 20/2/2020 in which the defendant sought stay of execution of a decree of Kshs 5,075,500 awarded to the plaintiff on 22/9/2017 for unpaid rent and renovation costs. The defendant's earlier application to set aside that judgment had been dismissed on 26/6/2019, and she had filed Nairobi Civil Appeal No 499 of 2019 against that decision. The application was supported by her affidavit deponing that the award was large, that she could not establish the plaintiff's ability to refund the decretal sum if the appeal succeeded, and that she was unemployed without a sustainable income. The plaintiff opposed, arguing that no substantial loss had been established, no reasonable security had been offered, and that a monetary decree could not be rendered nugatory. Framing the sole question as whether the applicant had satisfied the criteria for stay pending appeal, the court applied Order 42 rule 6(2) and the principles in Butt v Rent Restriction Tribunal [1979] KLR 417. The court found that the application, filed on 21/2/2020 only after a notice to show cause was served, could hardly be said to have been brought without undue delay. Nonetheless, in line with the principle that a stay ought to be granted so an appeal is not rendered nugatory, the court granted a conditional stay: execution is stayed pending the hearing and determination of the appeal, on condition that within 30 days the defendant deposits in court Kshs 2,537,750, being 50% of the original award, as security; in default the stay stands vacated. The ruling was dated, signed and delivered at Nairobi on 16/10/2020, with a note explaining delayed delivery due to the judge's duties outside the station.
Key legal issues
#01
Whether the criteria for stay of execution pending appeal under Order 42 rule 6(2) were satisfied
Holding
The court found the application was brought after undue delay but, applying the discretionary principles, granted a conditional stay on deposit of 50% of the decretal sum as security
Reasoning
The court noted the judgment was rendered on 22/9/2017, the ruling appealed from on 26/6/2019, taxation took place between 26/8/2019 and 29/10/2019, and the application was only brought on 21/2/2020 after a notice to show cause was served. Delay was thus established. Nonetheless, invoking the principle in Butt v Rent Restriction Tribunal that a stay ought to be granted so an appeal is not rendered nugatory, the court exercised its discretion in favour of a conditional stay secured by a deposit of half the award.
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Legal principles established
#- Stay pending appeal requires substantial loss, absence of unreasonable delay, and security for due performance of the decree
- Where there is no overwhelming hindrance, a stay ought to be granted so that a successful appeal is not rendered nugatory
Court orders
#- 1.Pending the hearing and determination of Court of Appeal Civil Appeal No Nrb 499 of 2019, there shall be a conditional stay of execution of the decree herein
- 2.The defendant shall within 30 days deposit in court the sum of Kshs 2,537,750 being 50% of the original award as security for the due performance of the decree
- 3.In default of the deposit, the conditional stay order shall stand vacated
- Jurisdiction invoked
- Order 42 rule 6(2) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kipkai Enterprises v Maurine Louise Osembe [2020] KEELC 938 (KLR)", Case Analysis (2020). Nairobi Civil Appeal No 499 of 2019 (arising from suit judgment of 22/9/2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/938/eng@2020-10-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.