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ELCDismissedNotice of Motion dated 28th September, 2021 (arising from appeal against judgment in CMC No. 307 of 2003)· [2021] KEELC 151 (KLR)

Samaki Industries Limited v Kenya Ports Authority [2021] KEELC 151 (KLR)

Environment and Land Court
6 December 2021
5,771 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to pause enforcement of a judgment because the losing party offered no evidence of loss and no security.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Mombasa (Naikuni J) on a Notice of Motion dated 28th September 2021 by the Appellant, Salim Verjee, seeking stay of execution of the court's judgment of 27th September 2021 (upholding the trial court's decision in CMC No. 307 of 2003) and stay of the decree in the subordinate court, pending an intended second appeal to the Court of Appeal. The underlying dispute concerned a lease of a suit property executed on 4th February 1982 for 25 years from 1st March 1976, expiring 31st March 2001; the trial court directed the Applicant to yield vacant possession and pay rent arrears. The court framed two issues: whether the Applicant satisfied the conditions in Order 42 Rule 6 of the Civil Procedure Rules, and costs. Applying the established four conditions (substantial loss, no unreasonable delay, security, and nugatory appeal), the court found the application was filed without delay (one day after judgment) but that the Applicant failed to demonstrate substantial loss with empirical or documentary evidence - the lease having expired - and failed to propose any security for costs, which the court read as an intent to frustrate the Respondent, Kenya Ports Authority, from enjoying the fruits of judgment. The application was dismissed with costs to the Respondent.

Key legal issues

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01

Whether the Appellant demonstrated substantial loss warranting stay of execution

Holding

The Appellant failed to demonstrate substantial loss; the lease had expired and mere assertions of family and historical attachment to the property were insufficient.

Reasoning

The court found that the Applicant had not adduced empirical or tangible documentary evidence of the substantial loss it would suffer. The lease had long expired, and the proper course was to vacate and allow the Respondent to exercise its proprietary rights. Reliance on family history of occupation since 1935 and the historic fish business did not amount to proof of substantial loss capable of justifying a stay.

p. 6
02

Whether the Appellant offered security for the due performance of the decree

Holding

The Appellant offered no security and its submissions did not amount to a tangible security proposition, showing an intention to frustrate the Respondent.

Reasoning

Although the power to order security is discretionary, the court held it would have been a sign of good faith for the Applicant to offer security reflecting commitment to the appeal. The Applicant proposed nothing, and its submission that the decree was irregular and thus not subject to conditions was rejected. This failure weighed heavily against the grant of stay under Order 42 Rule 6(2).

p. 6
03

Whether the application was brought without unreasonable delay

Holding

The application was filed only a day after the judgment and therefore satisfied the requirement of no unreasonable delay, but this alone could not sustain the application.

Reasoning

The court accepted that the motion filed on 28th September 2021, one day after the judgment of 27th September 2021, was brought without undue delay. However, since all limbs of Order 42 Rule 6 must be satisfied, satisfaction of the delay limb alone could not justify a stay; the court associated itself with authority stressing the successful party's entitlement to the fruits of judgment.

p. 6

Legal principles established

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  • The purpose of an application for stay of execution pending appeal is to preserve the subject matter in dispute so that the appellant's right of appeal is safeguarded and a successful appeal is not rendered nugatory.
  • Substantial loss must be proved by empirical or documentary evidence and not mere assertions.
  • A successful party is entitled to the fruits of its judgment and a court exercising stay jurisdiction must weigh the risk of injustice to both sides.

Court orders

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  1. 1.THAT the notice of motion application dated 27th September, 2021 by the Appellant/Applicant is bereft of any merit and the same is and hereby dismissed.
  2. 2.THAT the costs of the application to be borne by the Appellant/Applicant.
Jurisdiction invoked
Article 159 of the Constitution of Kenya, Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules, 2010 and Sections 1A, 1B and 3A of the Civil Procedure Act (Cap. 21)

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, "Samaki Industries Limited v Kenya Ports Authority [2021] KEELC 151 (KLR)", Case Analysis (2021). Notice of Motion dated 28th September, 2021 (arising from appeal against judgment in CMC No. 307 of 2003). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/151/eng@2021-12-06

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