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ELCDismissedApplication dated 2/10/2020 (appeal from Chief Magistrate Civil Case No. 2308 of 2020)· [2021] KEELC 2244 (KLR)

Ital-Plastick Africa Kenya Limited v C & S Properties Limited [2021] KEELC 2244 (KLR)

Environment and Land Court
7 June 2021
KBK. BOR
824 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to stop an auction because the goods had already been sold — apply for stay of execution immediately, not after the auction.

What this practically means

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Executive summary

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The Appellant, Ital Plastics Africa Limited, moved the court by an application dated 2/10/2020 seeking stay of attachment and auction of its goods pending the hearing and determination of its appeal against a ruling of the Chief Magistrate in Milimani Civil Case No. 2308 of 2020 dismissing its application. The Appellant, through the affidavit of its Winnie Daah Nyakiti, contended that the magistrate failed to consider that the windows and machines attached were tools of trade; that the Respondent unlawfully auctioned its goods without extracting a decree and within days of the ruling; that the goods were highly specialised machines purchased for Euros 168.600.00 in 2015; and that the Respondent's rent claim was inconsistent, being Kshs. 6,000,000/= before this court but Kshs. 4,000,000/= in the lower court. The Respondent, through director Sadhu Singh Devgun, opposed the application, showing that the goods were auctioned on 28/9/2020, the sale confirmed, and a certificate of sale dated 29/9/2020 issued to the highest bidder, Olerai Investments, at Kshs. 3,000,000/= with a Kshs. 300,000/= deposit paid. It also pleaded rent arrears of Kshs. 4,680,270/= under a lease dated 1/5/2017 and submitted that property had passed at the fall of the hammer, leaving nothing to stay. The court framed the issue as whether to stay attachment and prohibit auctioning. Finding the Respondent's averment that the goods had been sold uncontroverted, K. Bor, J declined to grant stay as there was nothing to stay, and dismissed the application on 7 June 2021.

Key legal issues

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01

Whether stay of execution pending appeal should issue

Holding

Stay refused because the distressed goods had already been sold at auction

Reasoning

The Respondent deponed, through its director Sadhu Singh Devgun, that the auction was held on 28/9/2020 and the sale confirmed, evidenced by a certificate of sale dated 29/9/2020 showing the highest bid of Kshs. 3,000,000/= and a receipt for a Kshs. 300,000/= deposit. The Appellant did not controvert these averments. Since the goods had passed to the highest bidder, there was nothing left for the court to stay.

p. 2

Legal principles established

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  • Stay of execution pending appeal cannot be granted where the property sought to be protected has already been sold

Court orders

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  1. 1.The court declines to grant the orders sought by the Appellant in the application dated 2/10/2020

Authorities

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Legislation

  • Distress for Rent Actnot specified
  • Land Actnot specified
  • Constitution of KenyaArticles 21, 28, 47
On appeal from
Chief Magistrate's Court (Milimani)
Civil Case No. 2308 of 2020
Jurisdiction invoked
Appeal from the magistrates' court (Distress for Rent Act, Land Act and Constitution invoked)

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, "Ital-Plastick Africa Kenya Limited v C & S Properties Limited [2021] KEELC 2244 (KLR)", Case Analysis (2021). Application dated 2/10/2020 (appeal from Chief Magistrate Civil Case No. 2308 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2244/eng@2021-06-07

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