Javid Iqbal Karim (Suing as legal representative of the estate of Gulam Fatima) & another v Ze Yun Yang [2020] KEELC 1215 (KLR)
The bottom line
#Kenya's Environment and Land Court paused execution of a Kshs 4.7 million land judgment because the winners couldn't prove they could refund the money if the appeal succeeded.
What this practically means
#Executive summary
#Key legal issues
#Whether the defendant would suffer substantial loss if stay is not granted
Yes - the plaintiffs gave no evidence of their means to refund the decretal amount, so the appeal if successful would be rendered nugatory.
The defendant contended the plaintiffs had no known assets or income and could not refund the decretal sum if the appeal succeeded. Under Section 112 of the Evidence Act, facts especially within a party's knowledge must be proved by that party. The plaintiffs' advocate merely asserted they were persons of means without particulars of assets or income. The court therefore found substantial loss likely and the appeal would be rendered nugatory if the money was paid out.
Whether the application was brought without unreasonable delay
Although brought after a long interval from the judgment, the delay was explained to the court's satisfaction (the plaintiffs' review application and the transfer of the file).
The court accepted the plaintiffs' point that the application came a long time after the February 2018 judgment. However, the defendant explained the delay by reference to the plaintiffs' review application determined on 2nd April 2019 and the need to wait for the file to be returned from Thika to Milimani. The explanation satisfied the court, so this condition was met.
Whether security for the due performance of the decree had been offered
Yes - the defendant's offer to deposit the entire decretal amount in a joint interest-earning account was sufficient security.
Order 42 Rule 6(2) requires the applicant to give such security as the court orders. The defendant agreed to deposit the entire decretal amount into an interest-earning bank account in the joint names of the parties' advocates. The court found this sufficient and fixed the security at Kshs. 5,500,000/- to be deposited within 30 days, failing which the stay lapses automatically.
Legal principles established
#- Where facts such as ability to refund a decretal amount are especially within a party's knowledge, that party bears the burden of proving them under Section 112 of the Evidence Act; absent such proof, substantial loss may be inferred.
- Substantial loss is the cornerstone for granting a stay of execution.
Court orders
#- 1.Execution of the judgment delivered on 23rd February, 2018 is stayed pending the hearing and determination of the defendant's intended appeal to the Court of Appeal
- 2.The plaintiffs shall deposit in an interest earning bank account in Nairobi in the joint names of the advocates on record for the parties a sum of Kshs. 5,500,000/- as security within 30 days, failing which the stay shall lapse automatically
- 3.Each party shall bear its own costs of the application
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Javid Iqbal Karim (Suing as legal representative of the estate of Gulam Fatima) & another v Ze Yun Yang [2020] KEELC 1215 (KLR)", Case Analysis (2020). Not stated in the excerpt provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1215/eng@2020-09-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.