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ELCPartially AllowedNot stated in the judgment· [2024] KEELC 7251 (KLR)

Roy Estates Limited v M’Anampiu (Environment and Land Appeal E071 of 2024) [2024] KEELC 7251 (KLR)

High Court of Kenya
30 October 2024
1,596 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court halted a director's imprisonment for contempt, but only after the company paid Kshs.1 million security and was denied more time to pay its debt.

What this practically means

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Executive summary

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This is a ruling of the High Court at Meru (C K Nzili, J) on a notice of motion dated 24.9.2024 in which the applicant, the appellant in a pending appeal, sought stay of execution of the trial court's orders of 18.9.2024 finding its director, Shemir Omar Yakub, in contempt of a consent judgment of 7.8.2024, together with an extension of five months to comply with that consent order. The consent judgment had decreed Kshs.3,071,262.40 for the construction of a retention wall on plot L.R Meru Municipality Block/11/79, with Kshs.1,535,631.20 due by 12.8.2024 and monthly instalments from 19.8.2024; only Kshs.100,000/= was paid. The respondent opposed the application as frivolous and an abuse of process, noting that the subject building in Meru town was on the verge of collapsing and endangering lives, and that a consent judgment can only be varied on limited grounds not demonstrated. The court applied Order 42 Rule 6 prerequisites - substantial loss, absence of unreasonable delay and security. It found the seven-day filing delay not inordinate, and held that the imminent deprivation of the director's personal liberty, evidenced by an existing warrant of arrest, constituted substantial loss that could not be undone if the appeal succeeded. Stay of execution was therefore granted on condition that the applicant deposits Kshs.1,000,000/= as security within three days. The five-month extension to comply was not granted, the applicant having not appealed against the consent judgment itself. Costs were left in the cause, the lower court file was to be availed, and mention set for 14.11.2024.

Key legal issues

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01

Stay of execution pending appeal under Order 42 Rule 6

Holding

Stay granted because substantial loss in the form of deprivation of the director's personal liberty was imminent, there being a warrant of arrest outstanding

Reasoning

The court applied the sequential prerequisites of substantial loss, unreasonable delay and security. The application was filed on 25.9.2024, seven days after the order of 18.9.2024, so no inordinate delay. A warrant of arrest had issued against the director, so imprisonment could not be undone if the appeal succeeded, and the appeal would be rendered nugatory by sentencing.

p. 3
02

Security for the due performance of the decree

Holding

Security of Kshs.1,000,000/= ordered to be deposited within 3 days

Reasoning

The applicant was willing to furnish security, and the court quantified it at Kshs.1,000,000/= to secure due performance of the decree of Kshs.3,071,262.40 under the consent judgment should the appeal not succeed.

p. 3
03

Extension of time to comply with the consent judgment

Holding

Not granted; the applicant had not appealed against the consent judgment and had breached its terms

Reasoning

The consent judgment entered judgment of Kshs.3,071,262.40 for a retention wall, payable in instalments. Only Kshs.100,000/= was paid. The applicant sought 5 months having already sought a month earlier, and had not appealed against the consent judgment itself, so no extension was allowed.

p. 3

Legal principles established

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  • Where deprivation of personal liberty is imminent, a stay of execution will ordinarily be granted since imprisonment cannot be undone if the appeal succeeds

Court orders

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  1. 1.Stay of execution of the orders of 18.9.2024 granted
  2. 2.Applicant to deposit Kshs.1,000,000/= as security for due performance of the decree within 3 days
  3. 3.The lower court file to be availed
  4. 4.Mention on 14.11.2024
  5. 5.Costs in the cause

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 1C
  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure RulesOrder 50 Rule 6
  • Civil Procedure RulesOrder 51 Rule 1

Cases cited (10)

  • Lazarus Kirech vs Kisorio Arap Barno
    (2008)
  • Board of Trustee National Social Security Fund vs. Micheal Mwalo
    (2015)
  • Kenya Commercial Bank Ltd vs Specialized Engineering Co. Ltd
    (1982) KLR
  • Koilel & 2 others vs Koilel & Another
    (2022) KEHC 10288 (KLR)
  • James Wangalwa vs Agnes Naliaka Cheseto
    (2012) eKLR
  • Butt vs Rent Restriction Tribunal
    (1982) KLR 417
  • RWW vs EKW
    (2019) eKLR
  • Republic vs Director of Lands and Urban Planning Makueni County Government exparte; Edward Mutinda and others
    (2015) eKLR
  • United Insurance Co. Ltd vs Stephen Ngare Nyamboki
    Civil Appeal No Nai 295 of 2001
  • Nation Media Group vs Child Welfare Society of Kenya
    (2021) eKLR
On appeal from
Trial court (lower court), Meru
Jurisdiction invoked
Sections 1A, 1B and 1C of the Civil Procedure Act; Order 42 Rule 6, Order 50 Rule 6 and Order 51 Rule 1 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, "Roy Estates Limited v M’Anampiu (Environment and Land Appeal E071 of 2024) [2024] KEELC 7251 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7251/eng@2024-10-30

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