Clarice Odhiambo v The Coca-Cola Company & 2 others [2020] KEELRC 21 (KLR)
The bottom line
#A Kenyan court paused enforcement of an award against Coca Cola, requiring the money be safely parked in a joint account while the appeal proceeds.
What this practically means
#Executive summary
#Key legal issues
#Unreasonable delay
The 10-month delay was not unreasonable because the application was made before taxation of costs, when execution could not lawfully issue without leave.
Section 94 of the Civil Procedure Act bars execution of a superior court decree before ascertainment of costs without leave. Since the claimant's bill of costs had not been taxed, there was no imminent danger of execution, and the judgment-debtor need not rush to seek stay. The applicant filed before the certificate of taxation issued, so the delay was explained.
Substantial loss and the claimant's means
The claimant, holding a vested pension of over Kshs 19 million, is not a person of straw; the applicant's apprehension of inability to recover the decretal sum was rebutted.
The legal burden lay on the applicant to show the decree-holder could not refund the decretal sum on a successful appeal. Once the claimant demonstrated substantial pension savings, over KShs 5 million of which had been withdrawn without her authority and was in the applicant's hands, the applicant's generalized apprehension was displaced. Whether the pension can be attached was irrelevant.
Cross-appeal and entitlement to execute
A claimant who has filed a cross-appeal against a judgment cannot execute that same judgment; conditional stay balancing both parties' interests was appropriate.
The claimant had filed a Notice of Appeal challenging the same judgment she sought to execute. The court held it abusive to impugn a judgment on appeal while purporting to execute it before withdrawing the appeal, and adopted the applicant's proposal to deposit the decretal sum plus taxed costs in a joint interest-earning account as security.
Legal principles established
#- Delay in seeking stay is measured against the point when execution became possible, i.e. after taxation of costs, since execution before ascertainment of costs requires leave
- The applicant bears the legal burden of showing substantial loss, but once inability to repay is alleged, the evidential burden shifts to the decree-holder to show resources
- A party cannot challenge a judgment on appeal yet execute that same judgment before withdrawing the appeal
Court orders
#- 1.Stay of execution of the judgment delivered on 15th March 2019 granted pending the hearing and determination of Nairobi Civil Appeal 577 of 2019; Coca Cola Central, East & West Africa Limited vs Clarice Odhiambo
- 2.Stay conditional upon the whole decretal sum plus the taxed costs of the suit being deposited within 30 days in an interest-earning account in a reputable financial institution in the joint names of counsel on record for both parties
- 3.In default of compliance by the applicant, the stay order lapses automatically after expiry of the 30 days' period
- 4.Should the default be caused by the claimant, the applicant has liberty to seek leave to deposit the security in Court
- 5.Costs of the application to be costs in the Appeal
- On appeal from
- Court of Appeal
- Civil Appeal No. 577 of 2019
- Jurisdiction invoked
- Order 42 rule 6(2) of the Civil Procedure Rules (stay of execution pending appeal); ELRC Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Clarice Odhiambo v The Coca-Cola Company & 2 others [2020] KEELRC 21 (KLR)", Case Analysis (2020). Nairobi Civil Appeal 577 of 2019 (stay application arising from ELRC Cause judgment of 15.3.2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/21/eng@2020-12-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.