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ELCPartially AllowedNot stated in the judgment· [2024] KEELC 7436 (KLR)

Kenya Power and Lighting Co Ltd v Wanyonyi (Environment and Land Appeal E019 of 2024) [2024] KEELC 7436 (KLR)

High Court of Kenya
24 October 2024
ECE.C. Cherono
2,443 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 paused a debt execution, but only because the appellant agreed to deposit Kshs 427,845 as security within 21 days.

What this practically means

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Executive summary

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This is a ruling of the High Court at Bungoma (E.C. Cherono, J) on a Notice of Motion dated 22 May 2024 in which the Appellant/Applicant, Joseph Muchai, sought a stay of execution of an ex parte judgment delivered on 04/08/2023 (decree of Kshs 854,845/=) and a ruling of the trial court delivered on 23/04/2024 striking out his earlier application to set aside, pending his appeal. The Applicant argued that his vehicles, which had been proclaimed and were due for attachment by Amork Auctioneers, were essential tools of trade whose sale would cause substantial loss; that the application was filed without delay; and that he was willing to provide security. The Respondent opposed, contending the application was a delaying tactic, that substantial loss had not been demonstrated, and seeking release of half the decretal sum to his advocate with the balance deposited in court. The court applied the three cumulative pre-requisites under Order 42 Rule 6 of the Civil Procedure Rules: it found the 30-day filing interval timeous; accepted, applying Kenya Shell Limited v Benjamin Karuga Kigibu, that attachment and sale of the Applicant's essential tools of trade would cause substantial loss; and held that security, whose purpose per Aron C. Sharma is to guarantee due performance rather than punish the judgment debtor, had been offered. The application dated 22 May 2024 was allowed: stay of execution granted pending the intended appeal on condition that the Applicant deposit half the decretal sum and costs (Kshs 427,845/=) in court within 21 days, failing which the stay lapses; the record of appeal to be filed and served within 45 days; costs in the cause.

Key legal issues

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01

Whether the application for stay pending appeal was filed without undue delay

Holding

The court held the application filed 30 days after the impugned ruling was made timeously

Reasoning

The order appealed against was delivered on 23/4/2024 and the present application was filed on 22/5/2024. The court found a 30-day interval, coupled with a memorandum of appeal filed on 29/04/2024 and an earlier application before the trial court, demonstrated prompt action and good faith without undue delay.

p. 4
02

Whether substantial loss would result to the Applicant if stay is not granted

Holding

Substantial loss was established because the proclaimed vehicles were the Applicant's essential tools of trade

Reasoning

The Applicant demonstrated that Amork Auctioneers had proclaimed his vehicles for attachment. The court accepted that the vehicles were special tools of trade essential to the Applicant's business operations and, given the sensitivity of the Applicant's mandate, their attachment and sale would cause substantial loss.

p. 4
03

Whether the Applicant had provided adequate security for due performance of the decree

Holding

The Applicant's undertaking to deposit the title deed for the suit land, and the order to deposit half the decretal sum, satisfied the third condition

Reasoning

Applying Aron C. Sharma v Ashana Raikundalia, the court noted security under Order 42 exists to guarantee due performance of the decree, not to punish the judgment debtor. The Applicant's undertaking to deposit his title deed, combined with the ordered half payment, secured the Respondent's interests during the appeal.

p. 4

Legal principles established

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  • Substantial loss is the cornerstone of the jurisdiction to grant stay of execution
  • An applicant must satisfy the three conditions under Order 42 Rule 6 before being granted stay of execution pending appeal
  • Security under Order 42 Rule 6 guarantees due performance of the decree, not punishment of the judgment debtor
  • Stay of execution is a discretionary relief to be exercised judiciously upon defined principles of law

Court orders

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  1. 1.Stay of execution of the judgment/decree granted pending hearing and determination of the Applicant's intended Appeal
  2. 2.The Applicant to deposit half of the decretal sum and costs of Kshs 427,845/= in court within 21 days from the date of the ruling; in default the stay orders to automatically lapse
  3. 3.The Applicant to prepare, file and serve his record of appeal within 45 days
  4. 4.Costs in the cause
On appeal from
Trial court (subordinate court)
Jurisdiction invoked
Order 42 Rule 6, Order 10 Rule 11 and Order 51 Rule (1) of the Civil Procedure Rules 2010; Sections 1A, 1B, 3A of the Civil Procedure Act (Cap 21); Article 159(2)(d) of the Constitution of Kenya 2010

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, "Kenya Power and Lighting Co Ltd v Wanyonyi (Environment and Land Appeal E019 of 2024) [2024] KEELC 7436 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7436/eng@2024-10-24

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