Thomas K’bahati t/a K/Bahati & Co Advocates v Janendra Raichand Shah [2021] KEELC 3132 (KLR)
The bottom line
#A Kenyan court refused to pause a Kshs 1.16 million costs judgment because the clients filed their appeal notice late and waited seven months to ask for a stay.
What this practically means
#Executive summary
#Key legal issues
#Whether an out-of-time notice of appeal can support stay of execution pending appeal
The notice of appeal filed on 20 March 2020 was outside the 14-day period in Rule 74 of the Court of Appeal Rules and therefore incompetent; without a competent notice of appeal there is no basis for a stay pending appeal.
The ruling was delivered on 25 February 2020 and the 14-day period for filing notice of appeal expired around 10 March 2020. The notice filed on 20 March 2020 was thus out of time and incompetent. Since an appeal is deemed filed only upon notice under the Court of Appeal Rules, an incompetent notice cannot found a stay application.
Whether the application was made without unreasonable delay
The 30-day stay granted at delivery of the ruling lapsed without a stay application being filed; the application was instead filed more than 7 months later with no explanation, failing the unreasonable delay requirement.
Upon the ruling of 25 February 2020, the applicants were granted 30 days' stay but did not file any stay application within that period. The application was filed on 6 October 2020, over 7 months later, and the supporting affidavit offered no explanation. Such unexplained, inordinate delay is fatal under Order 42 Rule 6(2)(a).
Whether substantial loss and security needed consideration
Since the applicants failed on the competent notice and delay requirements, it was unnecessary to consider substantial loss and security, as all Order 42 Rule 6 tests are conjunctive.
Relying on Equity Bank Limited vs Taiga Adams Company Limited, the court held the Order 42 Rule 6 conditions are cumulative and must all be met. Having found no competent notice of appeal and unreasonable delay, the application failed regardless of the substantial loss and security arguments, so those grounds were not determined.
Legal principles established
#- A notice of appeal filed out of time is not competent and cannot found an application for stay of execution pending appeal
- All the conditions in Order 42 Rule 6 must be satisfied conjunctively before stay of execution pending appeal is granted, including that the application be made without unreasonable delay
- A delay of more than seven months in filing a stay application, without explanation, is inordinate and unreasonable
Court orders
#- 1.The application dated 5th October 2020 is dismissed with costs
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Thomas K’bahati t/a K/Bahati & Co Advocates v Janendra Raichand Shah [2021] KEELC 3132 (KLR)", Case Analysis (2021). Miscellaneous Application No. 267 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3132/eng@2021-05-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.