Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedNot stated in the judgment (Notice of Motion dated 23rd September 2024)· [2024] KEELC 7478 (KLR)

Dolal & 2 others v Kenya Electricity Generating Company Limited & another (Environment & Land Case 10 of 2017) [2024] KEELC 7478 (KLR)

Environment and Land Court
13 November 2024
2,886 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
This ruling by the Environment and Land Court at Kerugoya (J. M. Mutungi, ELC Judge) determined a Notice of Motion dated 23rd September 2024 by the 1st Defendant seeking, under Order 42 Rule 6 of the Civil Procedure Rules, a stay of execution of a judgment delivered on 25th July 2024 in which the court awarded the Plaintiffs general damages of Kshs 10,000,000 with interest, directed implementation of environmental mitigation measures including a waste fuel disposal system within six months under the supervision of the County Director of Environment, Garissa, and awarded the Plaintiffs costs. The Applicant filed a Notice of Appeal and argued that the Plaintiffs' unknown financial capacity meant any refund of the decretal sum upon a successful appeal would be difficult, rendering the appeal nugatory, while asserting its own strong financial position obviated the need for security. The Plaintiffs opposed, noting a prior 60-day stay had been granted, but were amenable to a conditional stay on deposit of the decretal sum. The court reiterated the settled conditions for stay - undue delay, substantial loss, and security - applying Kenya Shell Ltd v Kibiru, National Industrial Credit Bank v Wasike, Samvir Trustee v Guardian Bank and Nduhiu Gitahi v Warugongo. Finding a balance necessary, the court granted a conditional stay: the decretal sum of Kshs 10,000,000 is to be deposited within 60 days into a joint interest-earning account at KCB Milimani in the joint names of both parties' advocates, failing which the stay lapses and the application stands dismissed. Costs of the application abide the appeal.

Key legal issues

#
01

Substantial loss as the cornerstone of the jurisdiction to grant stay under Order 42 Rule 6

Holding

Substantial loss is fundamental; a decree holder should not be deprived of the fruits of judgment without just cause, and mere assertions of substantial loss are insufficient without empirical or documentary evidence

Reasoning

The court applied Kenya Shell Ltd v Kibiru and Samvir Trustee Ltd v Guardian Bank, holding that the applicant's averment that the plaintiffs' ability to refund was unknown raised a reasonable fear; but the court balanced this against the plaintiffs' regular judgment, concluding that security by way of a deposit preserved both parties' rights pending appeal.

p. 4
02

Whether security was necessary despite the applicant's asserted financial strength

Holding

Yes - the court held it sufficient that the applicant offer security, which protects both sides whichever way the appeal goes

Reasoning

Although the applicant deponed it could pay the decretal sum if the appeal failed, the court noted the plaintiffs held a regular judgment and should not be forced to re-initiate execution if the judgment is confirmed. A deposit in a joint interest-earning account makes funds available to either party depending on the appeal's outcome.

p. 4

Legal principles established

#
  • An applicant for stay of execution must show the application was made without undue delay, that substantial loss may result unless stay is granted, and must offer security for due performance of the decree
  • Once an applicant expresses a reasonable fear that a respondent would be unable to repay the decretal sum, the evidential burden shifts to the respondent to show what resources he has
  • Security for the due performance of a decree may take many forms, and so long as adequate, its form is immaterial

Court orders

#
  1. 1.Stay of execution of the Judgment granted on condition that the 1st Defendant/Applicant deposits the total decretal sum of Kshs 10,000,000/- in a joint interest earning account at Kenya Commercial Bank Ltd, Milimani High Court Branch, in the joint names of the 1st Defendant's Advocates and the Plaintiffs' Advocates within 60 days, held as security for performance of the decree
  2. 2.In default of the deposit being made, the stay will lapse and the application dated 23rd September 2024 will stand dismissed
  3. 3.Costs of the application to abide the outcome of the Appeal

Authorities

#

Legislation

  • Civil Procedure RulesOrder 42 Rule 6 (including sub-rules 6(1) and 6(2)(a) and (b))
  • Evidence Act, Chapter 80 Laws of KenyaSection 112

Cases cited (7)

  • Antoine Ndinye –vs- African Virtual University
    (2015) KEHC 6783 (KLR)
  • Giafranco Manenthi & Another –vs- Africa Merchant Assurance Co. Ltd
    (2019) KEHC 7586 (KLR)
  • Joseph Simiyu Mukenya –vs- Agnes Naliaka Cheseto
    (2012) eKLR
  • Kenya Shell Ltd v Kibiru & Another
    [1986] e KLR 410
  • National Industrial Credit Bank Ltd v Aquinas Francis Wasike and Another
    [2006] eKLR
  • Samvir Trustee Limited vs. Guardian Bank Limited Nairobi (Milimani) HCCC 795 of 1997
    (2007) eKLR
  • Nduhiu Gitahi vs. Warugongo
    [1988] KLR 621; 1 KAR 100; [1988-92] 2 KAR 100
On appeal from
Not applicable - this is a ruling on stay pending appeal to the Court of Appeal; the judgment appealed from was delivered by this court
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Dolal & 2 others v Kenya Electricity Generating Company Limited & another (Environment & Land Case 10 of 2017) [2024] KEELC 7478 (KLR)", Case Analysis (2024). Not stated in the judgment (Notice of Motion dated 23rd September 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7478/eng@2024-11-13

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