Leonard N. Shimaka t/a Marende Necheza & Company Advocates v Registered Trustees of Mudzini Kwetu Center Trust
The bottom line
#A Mombasa court paused collection of a Kshs. 350,000 judgment against an advocate, provided he deposits the full amount in a joint escrow account within 21 days.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant demonstrated substantial loss
The court found the Applicant had established a case for stay, accepting that the Respondent had not demonstrated ability to refund the decretal amount should the appeal succeed.
The Applicant argued that the Respondent had not stated whether it could refund the decretal sum if the appeal succeeded and had filed no affidavit of means. The court accepted that unless the judgment was stayed the appeal risked being rendered nugatory, and applied the jurisprudence that substantial loss is what has to be prevented by preserving the status quo.
Whether the application was made without unreasonable delay
The court found no inordinate delay: judgment was delivered on 3rd March 2023 and the application filed on 6th April 2023.
The impugned judgment was delivered on 3rd March 2023 and the application was lodged on 6th April 2023, a period of one month and three days. The court held this did not constitute inordinate delay, satisfying the second condition of Order 42 Rule 6(2).
Whether security was furnished
Although the Applicant had not pledged the title deed as security, the court directed deposit of the decretal sum into an interest-earning escrow joint account as the security condition.
The court noted the mandatory requirement to furnish security under Order 42 Rule 6(2)(b) and observed the Applicant had not pledged the title deed. It nonetheless exercised its discretion to allow the application on condition that the entire decretal sum be deposited into a joint interest-earning escrow account within 21 days.
Costs of the application
Costs follow the event under Section 27(1) of the Civil Procedure Act; the successful Applicant was awarded costs against the Respondent.
The court invoked Section 27(1) of the Civil Procedure Act, holding that costs follow the event, and since the Applicant succeeded in the application, the Respondent was ordered to bear the costs.
Legal principles established
#- The three mandatory conditions for granting stay of execution pending appeal under Order 42 Rule 6(2) are substantial loss, absence of unreasonable delay, and furnishing of security.
- The purpose of stay of execution pending appeal is to preserve the subject matter in dispute so the appeal, if successful, is not rendered nugatory.
- Security under Order 42 Rule 6 guarantees due performance of the decree, not punishment of the judgment debtor.
Court orders
#- 1.The Notice of Motion application dated 6th April, 2023 be and is hereby found to have merit and is allowed in its entirety
- 2.A stay of execution of the Judgment delivered on 3rd March, 2023 and all its subsequent Orders to issue pending the hearing and final determination of the Appeal
- 3.The Appellant/Applicant to deposit the entire decretal sum into an interest earning Escrow Joint account in a reputable commercial Bank, to be held by both advocates for the parties, within 21 days from the date of delivery of the ruling
- 4.The Appellant to file and serve a record of appeal within thirty (30) days of the ruling
- 5.The appeal to be mentioned on 25th October, 2023 for directions on the mode of disposal of the appeal
- 6.The costs of the application to be borne by the Respondent
- On appeal from
- Chief Magistrate's Court at Mombasa
- CMCC No. 2328 of 2018
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules, 2010 (stay of execution pending appeal); Sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act, Cap. 21
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Leonard N. Shimaka t/a Marende Necheza & Company Advocates v Registered Trustees of Mudzini Kwetu Center Trust", Case Analysis (2023). Environment and Land Appeal E023 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20201/eng@2023-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.