Dolal & 2 others v Kenya Electricity Generating Company Limited & another (Environment & Land Case 10 of 2017) [2024] KEELC 7478 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Substantial loss as the cornerstone of the jurisdiction to grant stay under Order 42 Rule 6
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
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.
Whether security was necessary despite the applicant's asserted financial strength
Yes - the court held it sufficient that the applicant offer security, which protects both sides whichever way the appeal goes
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.
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.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.In default of the deposit being made, the stay will lapse and the application dated 23rd September 2024 will stand dismissed
- 3.Costs of the application to abide the outcome of the Appeal
- 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.