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ELCPartially AllowedNotice of Motion Application dated 3rd October 2023· [2024] KEELC 1607 (KLR)

EMILY MWENDE WAITA v VENTURE HOLDINGS LTD

Environment and Land Court
20 March 2024
EWE. K. Wabwoto
1,451 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi court paused enforcement of a Kshs 80.9 million judgment, but only because the losing party agreed to deposit Kshs 20 million as security.

What this practically means

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Executive summary

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The Defendant filed a Notice of Motion dated 3rd October 2023 seeking orders that its Notice of Appeal be deemed duly filed within time, and a stay of execution of the judgment delivered on 21st September 2023 pending appeal. The application was brought under Sections 1A, 1B and 63(c) and (e) of the Civil Procedure Act and Orders 22 and 42 of the Civil Procedure Rules. The Applicant, through a supporting affidavit sworn by Kwame Kariuki, argued that the decretal sum of Kshs 80,916,230/- would occasion great financial distress, that it was willing to provide security for costs, and that the application was brought without undue delay. The Plaintiff opposed, contending the intended appeal was a delay tactic and relying on Okiya Omtatah Okoiti vs Attorney General to argue that integrity of the legal system must be upheld and decisions must not be influenced by the financial standing of parties. The sole issue framed was whether the application was merited. Applying Order 42 rule 6 and the principles in Butt v Rent Restriction Tribunal, Machira & Co Advocates and Carter & Sons Ltd, the court found the application was filed within one month of the judgment, satisfying the delay threshold, and that security had been offered. Weighing the right to appeal against the right to enjoy the fruits of judgment, the court deemed the Notice of Appeal duly filed upon payment of fees, and granted a conditional stay of execution upon deposit of Kshs 20,000,000/- security in a joint interest-earning account within 30 days, failing which the stay would automatically lapse. Each party was ordered to bear its own costs of the application.

Key legal issues

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01

Whether the application for stay of execution dated 3rd October 2023 is merited

Holding

Application allowed subject to conditions

Reasoning

The court found the application was filed within one month of the judgment, satisfying the threshold of no unreasonable delay. Security for costs was offered by the Applicant. Balancing the right to appeal against the successful party's right to enjoy the fruits of judgment, the court granted a conditional stay requiring a substantial deposit as security, protecting both the appellant's appellate rights and the respondent's interests. The court relied on Order 42 rule 6 of the Civil Procedure Rules and established case law on stay applications.

p. 3

Legal principles established

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  • Grant of stay of execution is discretionary and requires substantial loss, no unreasonable delay, and security for costs

Court orders

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  1. 1.The Notice of Appeal dated 3rd October 2023 be deemed as duly filed within time upon payment of the requisite fees.
  2. 2.Pending the hearing and determination of the Appeal, a stay of execution is issued against the judgement delivered on 21st September 2023.
  3. 3.Security of costs of Kshs 20,000,000/- to be deposited in a joint interest earning account in the names of the parties' Advocates on record within 30 days of delivery of the ruling.
  4. 4.Failure to comply, the stay shall automatically lapse without further reference to the Court.
  5. 5.Each party shall bear its own costs of the application.

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 63(c) and (e)
  • Civil Procedure Rules, 2010Order 22 rule 22
  • Civil Procedure Rules, 2010Order 42 rule 6

Cases cited (4)

  • Okiya Omtatah Okoiti vs Attorney General
    2015 eKLR
  • Butt v Rent Restriction Tribunal
    [1982] KLR 417
  • Machira T/A Machira & Co Advocates vs. East African Standard (No 2)
    [2002] KLR 63
  • Carter & Sons Ltd vs Deposit Protection Fund Board & 2 others
    Civil Appeal No. 291 of 1997
Jurisdiction invoked
Sections 1A, 1B, 63(c) and (e) of the Civil Procedure Act and Order 22 rule 22 and Order 42 rule 6 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "EMILY MWENDE WAITA v VENTURE HOLDINGS LTD", Case Analysis (2024). Notice of Motion Application dated 3rd October 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1607/eng@2024-03-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.