Barnabas East Africa v County Government of Mombasa & 2 others (Environment and Land Constitutional Petition 29 of 2022) [2024] KEELC 1361 (KLR)
The bottom line
#A Mombasa court paused execution of a Kshs 27 million award against Mombasa County, but only if the County deposits Kshs 5.5 million as security within 30 days.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant would suffer substantial loss if stay is not granted
The court found substantial loss demonstrated, since execution would deprive the public of an access road and the decretal sum would be difficult to recover if the appeal succeeded.
The court applied the test in Kenya Shell Ltd v Benjamin Karuga and Mukuma v Abuoga, holding that substantial loss is the cornerstone for granting stay. It accepted the Applicant's averments regarding lack of budget, public access to the road and the difficulty of recovering the decretal sum from the Petitioner/Respondent, who had produced no valuation report or bank statements to show capacity to refund.
Whether the application was made without undue delay
The application filed about one month and two days after judgment was held to have been made timeously and without undue delay.
Judgment was delivered on 12th October 2023; a Notice of Appeal was filed on 18th October 2023 and the application on 14th November 2023. On this chronology the court found the application expeditious, satisfying the second prerequisite under Order 42 Rule 6(2)(a).
Whether the Applicant, being a government entity, was required to furnish security
Despite Order 42 Rule 8 exempting the Government from security, the court exercised its discretion and directed a security deposit of Kshs. 5,500,000.00 as a condition for the stay.
Relying on Aron C. Sharma v Ashana Raikundalia and Gianfranco Manenthi v Africa Merchant Assurance Co Ltd, the court held that security guarantees due performance of the decree and that the issue of deposit is for the court, not the applicant's willingness. The court balanced the Government's Rule 8 exemption against the interest of the decree holder, fixing a partial deposit of the decretal sum in an escrow account.
Legal principles established
#- The three conditions for granting stay of execution pending appeal under Order 42 Rule 6(2) - substantial loss, no undue delay and furnishing of security - are conjunctive and must all be met simultaneously.
- Even where Order 42 Rule 8 exempts the Government from providing security, the court retains discretion to impose appropriate security conditions, since security is for the due performance of the decree and not to punish the judgment debtor.
- The purpose of stay of execution pending appeal is to preserve the substratum of the case so that a successful appellant is not reduced to a holder of a barren result.
Court orders
#- 1.Notice of Motion dated 14th November, 2023 found to have merit and allowed subject to fulfilment of the stated pre-conditions
- 2.Stay of execution of the decree arising from the Judgment of Justice L. L. Naikuni delivered on 12th October, 2023 pending the hearing and determination of the intended appeal in the Court of Appeal
- 3.1st Respondent/Applicant to deposit Kshs. 5,500,000.00 as security for performance of the decree in a Joint Escrow bank account in the names of Messrs. Benedict Nzamba & Company Advocates and the County Government of Mombasa within thirty (30) days
- 4.Failure to comply with the security condition, the Notice of Motion shall automatically stand dismissed and execution of the decree shall ensue procedurally as provided for by law
- 5.No orders as to costs
- Jurisdiction invoked
- Order 42 Rules 6 and 8, Order 51 Rule 1 of the Civil Procedure Rules, 2010; Sections 1A, 1B, 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, "Barnabas East Africa v County Government of Mombasa & 2 others (Environment and Land Constitutional Petition 29 of 2022) [2024] KEELC 1361 (KLR)", Case Analysis (2024). Notice of Motion dated 14th November, 2023 (in the Petition at the Environment and Land Court, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1361/eng@2024-03-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.