James Mwangi Ngatia & another v China Road & Bridge Corporation (Kenya) Limited [2021] KEELC 3973 (KLR)
The bottom line
#A Kenyan court stayed execution of a Kshs. 4.3 million judgment because the losing company only learnt of it late during Covid-19 court restrictions, provided it deposits the money as security.
What this practically means
#Executive summary
#Key legal issues
#Enlargement of time to file notice of appeal
Time enlarged because the applicant gave a sufficient explanation - it only learnt of the judgment on 8th July 2020
Judgment was delivered virtually on 28th May 2020 during Covid-19 scaled-down court operations, with notice posted on the Kenya Law Website; neither counsel was present. The court gave the applicant the benefit of doubt as to when it became aware of the judgment and found the explanation sufficient to enlarge time.
Stay of execution pending appeal
Stay granted subject to security of Kshs. 4,300,000/- in a joint earning account
The court found the application made within reasonable time once delay was explained, that the applicant demonstrated substantial loss if the decretal sum were paid out and it later succeeded on appeal, and that the applicant offered security via a bank guarantee. All Order 42 rule 6 conditions were thus met.
Computation of time for instituting the appeal
Period from 28th May 2020 to the date of the ruling excluded in computing time and in preparing the certificate of delay
Because the applicant was unaware of the judgment, the court directed the Deputy Registrar to exclude the period between the judgment date and the ruling date when computing the time within which the appeal is to be instituted and when preparing the certificate of delay.
Legal principles established
#- An order for stay of execution pending appeal requires substantial loss, application without unreasonable delay, and security for due performance of the decree
- Where a party was not notified of the delivery of judgment and time for filing a notice of appeal lapsed, the court may enlarge time upon a sufficient explanation
Court orders
#- 1.Order of stay of execution of the decree from the judgment delivered on 28th May 2020 pending the hearing and determination of the intended appeal, on condition that the defendant deposits Kshs. 4,300,000/- in a joint earning account in the names of the 1st plaintiff's counsel and the defendant's counsel within 45 days, in default of which the stay automatically lapses
- 2.The defendant to file and serve the notice of appeal against the judgment dated 28th May 2020 within 14 days of the ruling
- 3.The defendant to file and serve the request for typed proceedings and take other steps to file and serve the appeal within 14 days of the ruling
- 4.The Deputy Registrar to exclude, in computing time for instituting the appeal and preparing the certificate of delay, the period from 28th May 2020 to the date of the ruling
- 5.Costs of the application to be borne by the defendant/applicant
- Jurisdiction invoked
- Article 159(2)(d) of the Constitution and sections 1A, 1B and 3A of the Civil Procedure Act, Cap. 21, with Orders 9, 42, 50 and 51 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Mwangi Ngatia & another v China Road & Bridge Corporation (Kenya) Limited [2021] KEELC 3973 (KLR)", Case Analysis (2021). Not stated in the extract (Notice of Motion dated 23rd July 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3973/eng@2021-03-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.