West African Foodstuffs Co. Ltd & 2 others v Kayser Investment Ltd [2021] KEELC 960 (KLR)
The bottom line
#A Kenyan court froze a Kshs 4 million money judgment, unfroze the winning party's bank accounts, and rejected demands for extra security pending appeal.
What this practically means
#Executive summary
#Key legal issues
#Validity of joint affidavits
The objection to the joint affidavits fails; the single-judge decision relied on was overruled by a full bench of the Court of Appeal, and post-2010 substantive justice prevails over form
The Respondent relied on a single-judge decision in Francis Kariu Gakumbu, but that decision was overruled on reference by a full bench of the Court of Appeal which accepted that affidavits may be sworn by two or more persons. In any event, the decision predated the 2010 Constitution, whose Article 159(2)(d) negates undue reliance on procedural technicalities. Order 19 Rule 7 permits reception of affidavits with irregularities in form.
Admissibility of affidavit notarized in the USA
The objection to the affidavit notarized in the USA is unmerited; the defect is one of form, not substance
Section 88 of the Evidence Act was considered in Techno Service Ltd to require authentication of foreign notaries, but the court preferred Qad Software and Tanga Investments, holding notarial defects to be matters of form not substance, and applying Article 159(2)(d) and Article 10(2)(b) on equity and social justice to admit the affidavit.
Stay of execution pending appeal
The conditions in Order 42 Rule 6(2) are satisfied: application made without delay, sufficient cause established via arguable appeal, and substantial loss shown; security fixed by the court as a bank guarantee of Kshs. 1,203,948
The interim ruling ordering deposit of the entire decretal sum before hearing the set-aside application, and the garnishee nisi freezing the appellants' accounts, effectively condemned the appellants unheard and rendered the pending set-aside application moot, constituting substantial loss. The appeal raises arguable points including breach of natural justice. Security is a matter for the judge, who set a bank guarantee of the rent arrears sum.
Security for costs and deposit of decretal sum
Both limbs of the Respondent's application dismissed: the 1st Appellant is a Kenyan company resident in Kenya, so Order 42 Rule 14(2) does not apply, and the request was oppressive
Order 42 Rule 14(2) requires the appellant to be not ordinarily resident in Kenya with insufficient property; the principal appellant is a Kenyan-registered company, hence resident and domiciled in Kenya. The untabulated Kshs. 1,000,000 figure and the demand for the entire decretal sum were concerted efforts to keep the appellants from their day in court, and granting them would inflict double jeopardy.
Legal principles established
#- A joint affidavit sworn by two or more deponents is not fatal; the court may receive an affidavit notwithstanding irregularity in form, in line with Order 19 Rule 7 and Article 159(2)(d)
- An affidavit notarized outside the Commonwealth need not be struck out where the defect is one of form and not substance
- Security for the due performance of a decree under Order 42 Rule 6(2) is a matter within the discretion of the judge, to be determined even without an offer by the applicant
- An arguable appeal need not be one that must succeed; a single bona fide arguable ground suffices for sufficient cause
Court orders
#- 1.The Notice of Motion Applications dated 28th January, 2021 and 23rd August 2021 filed by the Appellants/Applicants be and are hereby granted
- 2.An order of stay of execution of the judgement and decree issued by the lower court vide Milimani Commercial CMC Case No. 84 of 2020, pending the hearing and determination of the subject Appeal
- 3.An order of stay of proceedings and/or further proceedings, including the garnishee proceedings in Milimani Commercial CMC Case No. 84 of 2020, pending the hearing and determination of the subject Appeal
- 4.The order of Garnishee Nisi issued on 11th August 2021 is stayed and/or suspended; the Appellants' bank accounts held at the garnishee banks are unfrozen forthwith
- 5.The Appellants shall provide a Bank guarantee for the sum of Kshs. 1,203,948 only, from a reputable banking institution, within 30 days from the date hereof
- 6.The Respondent's Application dated 13th September 2021 is dismissed
- 7.The Appellants/Applicants shall have costs of the 3 Applications, to be borne by the Respondents
- On appeal from
- Chief Magistrate's Court, Milimani Commercial Courts
- Milimani Commercial CMC Case No. 84 of 2020
- Jurisdiction invoked
- Appellate jurisdiction over the subordinate court (Environment and Land Court following transfer for subject-matter jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "West African Foodstuffs Co. Ltd & 2 others v Kayser Investment Ltd [2021] KEELC 960 (KLR)", Case Analysis (2021). Nairobi MCCOMMSU No. 84 of 2020 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/960/eng@2021-11-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.