Waitiki v Kenya Power & Lighting Co. Ltd
The bottom line
#Kenya Power won a pause on paying a Kshs 25 million judgment, but only after depositing Kshs 5.5 million as security while it appeals.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant demonstrated substantial loss
The court found the defendant, a State corporation supplying electricity, would suffer enormous substantial loss and irreparable harm if movable assets including operational vehicles were attached and sold
The court took judicial notice of the defendant's role as a monopoly supplier of essential electricity services, on which hospitals, security agencies, industries and courts depend. Attachment and removal of proclaimed movable assets would cause irreparable harm to its operations, and execution before the appeal would render the appeal nugatory.
Whether the application was filed without unreasonable delay
Although filed about 7 months after judgment, the court excused the delay on the ground that the typed judgment was only available on 14th November 2022 and the defendant's board management changed
The court acknowledged the delay appeared inordinate on its face but accepted the explanation that the typed judgment was only available on 14th November 2022 and that substantial changes in the defendant's board of management contributed to the delay, concluding the application was filed expeditiously.
Whether security for due performance of the decree was given
The court exercised its discretion and ordered a cash deposit of Kshs. 5,500,000 in a joint escrow interest-earning account within 21 days, failing which the stay lapses
The defendant had not offered security, arguing its public nature made it unnecessary. The court held security under Order 42 Rule 6(2)(b) is mandatory, its purpose being to guarantee due performance of the decree, and on a balance of scale directed a fixed deposit as a condition of the stay.
Whether the court was functus officio having granted a 30-day stay at judgment
The court did not expressly rule on the functus officio objection but proceeded to consider and grant the stay application on its merits
The plaintiff raised a jurisdictional objection that the court became functus officio after granting a 30-day stay on 12th October 2022 under Order 42 Rule 5. The court's analysis addressed the three Order 42 Rule 6 conditions without expressly determining the objection, effectively treating itself as seized of jurisdiction.
Legal principles established
#- Stay of execution pending appeal is discretionary and conditional on substantial loss, absence of unreasonable delay, and security for due performance of the decree
- The purpose of stay of execution is to preserve the subject matter of the dispute so a successful appeal is not rendered nugatory
Court orders
#- 1.The Notice of Motion application dated 17th May, 2023 be and is hereby found to have merit and hence allowed only for the purpose of preserving the suit property
- 2.Stay of the execution of the Judgment/Decree be and is granted pending hearing and determination of the Applicants' intended Appeal before the Court of Appeal
- 3.The Defendant/Applicant to deposit security of Kenya Shillings Five Million Five Hundred Thousand (Kshs. 5,500,000/=) in a fixed Joint Escrow interest earning bank account in a reputable commercial bank in the joint names of both parties' advocates within 21 days, in default the stay orders shall automatically lapse
- 4.There shall be no orders as to costs
- Jurisdiction invoked
- Sections 1, 1A, 3 & 3A of the Civil Procedure Act, Cap. 21 and Order 42 Rule 6 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Waitiki v Kenya Power & Lighting Co. Ltd", Case Analysis (2023). Environment & Land Case 87 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20977/eng@2023-10-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.