Ajit Bhogar Singh v Kenya Power & Lighting Company [2021] KEELC 729 (KLR)
The bottom line
#Kenya Power won a pause on paying a Kshs 20 million judgment, but only after promising to deposit Kshs 5 million as security while it appeals.
What this practically means
#Executive summary
#Key legal issues
#Whether the conditions for stay of execution under Order 42 rule 6(1) and (6) were satisfied
The application was found to have been made without unreasonable delay (21 days) and the applicant offered security; however, the court was not fully satisfied substantial loss was demonstrated, yet it allowed the application subject to a security deposit
The court set out the four requirements: sufficient cause, substantial loss, no unreasonable delay and security. It found only 21 days elapsed between judgment and the application, so delay was not unreasonable. On substantial loss it noted the applicant is a reputable state corporation and the decretal sum might be irrecoverable if the appeal succeeds, though it expressly stated it was 'not fully satisfied' on substantial loss. Relying on the applicant's undertaking to furnish security, it granted stay conditional on depositing Kshs. 5,000,000 in a joint interest-earning account, with dismissal of the application if default occurred.
Whether the appeal would be rendered nugatory if stay was not granted
The court accepted that if the decretal sum of Kshs. 20,000,000 were paid to a plaintiff of undisclosed financial means and the appeal succeeded, recovery would be difficult, and payment would impair the applicant's public-service operations
The applicant argued the respondent could not refund the decretal amount and that payment would negatively impact services of a public nature. The respondent countered that he retained possession of the suit land and could compensate by way of lien. The court found the applicant, being a reputable statutory corporation willing to provide security, posed less risk of irrecoverability, and fashioned a conditional stay preserving the respondent's interests through the security deposit.
Legal principles established
#- The purpose of a stay of execution pending appeal is to preserve the subject matter in dispute so the appellant's undoubted right of appeal is safeguarded and a successful appeal is not rendered nugatory
- The court's discretion to grant stay must be exercised judicially, weighing that the appeal is not rendered nugatory while ensuring the successful litigant enjoys the fruits of judgment
Court orders
#- 1.The Notice of Motion application dated 14th December 2020 by the Defendant/Applicant is meritorious and is allowed
- 2.Stay of execution of the judgment delivered on 23rd November 2020 and all consequential orders pending the hearing and determination of the appeal
- 3.The Appellant/Applicant to pay as security Kenya Shillings Five Million (Kshs. 5,000,000.00) into a joint interest-earning bank account of the law firms of Messrs. Kadima & Company Advocates and Kiarie Kariuki & Company Advocates within 30 days until the appeal is heard and determined
- 4.Failure to adhere with any of these orders, the Notice of Motion application will stand dismissed
- 5.Costs of the application to be in the cause
- Jurisdiction invoked
- Sections 1, 1A, 1B, 3 and 3A of the Civil Procedure Act Cap 21 and Order 42 Rule 6(1) and (6) and Order 51 of the Civil Procedure Rules 2010, together with Section 3 of the Environment and Land Court Act No. 19 of 2012
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Nazmudin Abdulali Shariff & 2 others v Kenya Railways Corporation[2023] KEELC 18561 (KLR)6 Jul 2023
Cite this brief
#Cite this brief
Caselaw, "Ajit Bhogar Singh v Kenya Power & Lighting Company [2021] KEELC 729 (KLR)", Case Analysis (2021). Not stated in the ruling (ELC suit, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/729/eng@2021-11-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.