Manuchar Kenya Limited v Dennis Odhiambo Olwete [2020] KEELRC 388 (KLR)
The bottom line
#A Kenyan court refused to freeze released funds because the losing party waited 28 days, proved no loss, and offered no security.
What this practically means
#Executive summary
#Key legal issues
#Whether substantial loss and unreasonable delay were established for grant of stay pending appeal
The application failed: the Respondent, who lost the appeal before this Court, sought to lock the decretal funds deposited by the successful Appellant as security, without showing substantial loss or offering security itself
The Court applied Order 42 Rule 6(1) and (2), which requires substantial loss, absence of unreasonable delay, and security from the applicant. The Respondent took 28 days to move the Court despite being represented at judgment delivery. The money was deposited by the Appellant to satisfy the stay condition set by the lower court; the Respondent could not convert that deposit into security for its own appeal. No plea was made that the Appellant would be unable to satisfy any award of the Court of Appeal, the Respondent being required to prove such inability.
Whether the appeal would be rendered nugatory if stay is declined
No nugatory effect was established because substantial loss was not demonstrated and the Appellant was shown to be a profitable company with attachable assets
Counsel for the Appellant relied on authority that where substantial loss has not been established, it cannot be said that an appeal will be rendered nugatory. The Court found nothing to suggest the Appellant would be unable to satisfy an award that may be made against it by the Court of Appeal; the Respondent did not even plead such inability. The Respondent company's advocate also lacked capacity to swear to the loss his client would suffer, there being no affidavit by the Respondent itself.
Legal principles established
#- The duty to post security under Order 42 Rule 6(1) and (2) of the Civil Procedure Rules lies on the party seeking stay of execution, not the countering party
- The legal burden of demonstrating inability or financial limitation to settle a decretal sum lies with the party moving the Court
Court orders
#- 1.The Respondent's Notice of Motion dated 27th August 2020 is found to be without merit and is disallowed
- 2.The interim orders granted on 31st August 2020 are discharged
- 3.The costs of the application will be costs in the appeal before the Court of Appeal
- On appeal from
- Lower court (trial court / superior special court; court not named in the judgment)
- Not stated
- Jurisdiction invoked
- Appellate jurisdiction over the lower court's judgment, with the stay application brought under Order 42 Rule 6 (1) and (2) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Manuchar Kenya Limited v Dennis Odhiambo Olwete [2020] KEELRC 388 (KLR)", Case Analysis (2020). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/388/eng@2020-10-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.