Peter Mbuthia Gitau v Kenya Revenue Authority [2020] KEELRC 1643 (KLR)
The bottom line
#The Employment Court refused to pause a KShs 1.4 million judgment against KRA, because KRA delayed nearly three months and proved no real hardship.
What this practically means
#Executive summary
#Key legal issues
#Substantial loss
No substantial loss proved; the claimant demonstrated he is able to refund the decretal sum of Kshs.1,416,000 should the appeal succeed
The court took judicial notice that the applicant is a public body charged with revenue collection and could easily pay the decretal sum. Equally, the claimant listed assets - three motor vehicles and three parcels of land at Gatamaiyu/Kagaa - totalling over Kshs.7 million, sufficient to cover the decree. Where the respondent can refund, an appeal against a monetary decree cannot be rendered nugatory.
Inordinate delay
There was inordinate and unexplained delay of almost three months from delivery of judgment to filing of the stay application
Judgment was delivered on 26th July 2019 with a 30-day oral stay which lapsed on 25th August 2019. The application was not filed until 15th October 2019. The explanation - that the applicant, a state corporation, needed to gather instructions - was rejected, courts having repeatedly chided the KRA for relying on that excuse, it being an autonomous body that must bear the rigours of litigation.
Validity of the notice of appeal
The notice of appeal was valid, having been received in the registry on 7th August 2019, within 14 days of judgment, and signed and served on 13th August 2019
The record showed the notice was lodged within the statutory 14 days and the delay in signing lay with the registry, not the applicant. Any defect relating to the prayers in the notice was a matter for the appellate court, and the claimant had not moved the court under the Civil Procedure Rules or Rule 84 of the Court of Appeal Rules to strike it out.
Legal principles established
#- Where a money decree is involved, substantial loss lies in the inability of the respondent to refund the decretal sum should the appeal succeed, and the legal burden of proving that inability lies on the applicant and does not shift
- The Kenya Revenue Authority is an autonomous, corporate statutory body, not an organ of government, and must submit itself to the rigours of litigation without operating under the shadow of the Government
- An applicant for stay must do more than assert substantial loss; it must show the damages it would suffer if stay is not granted, since granting stay denies a successful litigant the fruits of judgment
Court orders
#- 1.The application dated 14th October 2019 and filed on 15th October 2019 for stay of execution is dismissed
- 2.Costs of the application awarded to the claimant
- Jurisdiction invoked
- Inherent jurisdiction to grant stay under Order 42 Rule 6 of the Civil Procedure Rules, the court which delivered the decree being moved pending an intended appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Mbuthia Gitau v Kenya Revenue Authority [2020] KEELRC 1643 (KLR)", Case Analysis (2020). Cause No 1614 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1643/eng@2020-02-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.