John Kahaguri Maina v Premier Tavern Hotel & 2 others [2020] KEELRC 141 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the application was brought without unreasonable delay
Filing 26 days after judgment did not amount to inordinate delay, and the delay was explained by the time taken to obtain the judgment for preparation of the memorandum of appeal
The application dated 3rd September 2020 was filed 26 days after the judgment of 7th August 2020. The court held this was not inordinate delay, accepting the Applicants' explanation that obtaining a copy of the judgment delayed preparation of the memorandum of appeal. The COVID-19 hardships were also urged by the Applicants in support.
Whether the Applicants demonstrated substantial loss and furnished security as required by Order 42 Rule 6(2)
The Applicants failed: they did not annex evidence of the alleged deposit of the decretal sum, leaving the security a mere allegation, and did not prove the decree holder could not refund
Although the court had granted temporary stay on condition that the decretal sum be deposited within 14 days, no evidence of the deposit was annexed or found in the court file, so the condition was unfulfilled. The claimant, acting in person, showed he earned Kshs.84,509 monthly in the hospitality industry and could refund. The allegation that he was a man of straw was unsupported.
Legal principles established
#- A party seeking stay of execution of a money decree must demonstrate, with evidence, that the appeal will be rendered nugatory; it is not automatic that execution of a money decree renders an appeal nugatory
- Where it is alleged that the decree holder cannot refund the decretal sum, the burden of proving that lies on the applicant for stay
- Substantial loss must be proved by empirical or documentary evidence, not mere assertions
Court orders
#- 1.The application for stay of execution dated 3rd September 2020 is dismissed with costs
- 2.If the decretal sum has been deposited in court, the same be released to the Claimant/Respondent
- Jurisdiction invoked
- Order 42 Rule 6(2) of the Civil Procedure Rules; Section 1A and 1B of the Civil Procedure Act; Articles 159(2)(d) and 48 of the Constitution (delivery of ruling)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Kahaguri Maina v Premier Tavern Hotel & 2 others [2020] KEELRC 141 (KLR)", Case Analysis (2020). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/141/eng@2020-12-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.