Davis Kipyegon Rono t/a Clenclaid Creation v Shah & another
The bottom line
#A Kericho court refused to stop a money judgment's execution, ruling that losing money alone is not 'substantial loss' and security must be offered.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant demonstrated substantial loss to warrant stay of execution pending appeal
No substantial loss demonstrated; monetary loss is quantifiable and recoverable, and the court will not deny successful litigants the fruits of their judgment
The court applied Mukuma v Abuoga and Kenya Shell v Kibiru, holding that the Applicant merely pleaded that he would suffer loss by being required to deposit the decretal sum. Since money is capable of being quantified and recoverable upon a successful appeal, no substantial loss was shown. The court also noted the Applicant laboured under the mistaken view that his review application had been allowed and the judgment set aside.
Whether the application was brought without undue delay
Yes; the application was filed on 9th March 2022, shortly after the conditional stay order of 4th March 2022
The court found the impugned ex-parte judgment was delivered on 11th November 2021, the Applicant sought stay in the trial court, conditional stay issued on 4th March 2022, and the present application and Notice and Memorandum of Appeal were filed on 9th March 2022, so the second condition was satisfied.
Whether the Applicant furnished security as required under Order 42 Rule 6(2)(b)
No; the Applicant neither offered nor indicated willingness to furnish security, which is mandatory, so all three conditions failed
The court held that offering security for the due performance of the decree is mandatory under Order 42 Rule 6(2)(b). The Applicant made no offer of security. Combined with failure on substantial loss, the court declined to grant stay, also having regard to Section 3A of the Civil Procedure Act.
Legal principles established
#- Monetary loss does not amount to substantial loss for purposes of stay of execution because it is quantifiable and recoverable if the appeal succeeds
- The three conditions for stay pending appeal under Order 42 Rule 6(2) are substantial loss, absence of undue delay, and provision of security
Court orders
#- 1.Prayers (ii) and (iii) of the application dismissed as having automatically failed
- 2.Applicant to prepare, file and serve his Record of Appeal within 45 days from the date of the ruling
- 3.Costs be in the cause
- On appeal from
- Kericho Magistrate's Court
- Kericho CMCC No. 26 of 2019
- Jurisdiction invoked
- Sections 1A, 1B, 3A, 79G and 95 of the Civil Procedure Act; Order 42 Rule 6, Order 50 Rule 6, Order 51 Rules 1 and 3, Order 40 Rules 1-4, Order 22 Rule 22 of the Civil Procedure Rules
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.
- Kamau Mwangi v Attorney General & Another[2017] KEHC 8108 (KLR)4 Jan 2017
Cite this brief
#Cite this brief
Caselaw, "Davis Kipyegon Rono t/a Clenclaid Creation v Shah & another", Case Analysis (2023). Environment and Land Miscellaneous Application E003 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18180/eng@2023-06-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.