Kanamai Timber & Hardware Limited v Bernard Katuti [2021] KEELRC 1975 (KLR)
The bottom line
#A Kenyan court allowed an employer to delay payment of a judgment by splitting it: half paid now, half held in a joint account pending appeal.
What this practically means
#Executive summary
#Key legal issues
#Substantial loss in a money decree
Substantial loss is the inability of the respondent to refund the decretal sum if the appeal succeeds; the applicant bears the legal burden which does not shift.
The court adopted the test in Winfred Nyawira Maina v Peterson Onyiego Gichana, that cogent evidence of the respondent's inability or financial limitation must be laid before the court by the applicant before the evidential burden shifts to the respondent.
Unreasonable delay
Delay was not inordinate given the COVID-19 pandemic's effect on court processes and the fact that the Duty Judge had already allowed filing of the Memorandum of Appeal out of time.
The court took judicial notice that court processes had been adversely affected by the COVID-19 Pandemic. It also noted that Mbaru J, sitting as Duty Judge in Nairobi, had on 20th November 2020 allowed the Applicant to file and serve its Memorandum of Appeal out of time, and declined to interfere with that decision.
Security/conditional stay
A conditional stay was granted: 50% of the decretal sum released to the respondent and 50% deposited in a joint interest-earning account in the names of the parties' advocates.
Balancing the applicant's right of appeal against the respondent's right to actualise judgment, the court granted a conditional stay of execution, with automatic lapse if either condition was not met within the stipulated periods.
Legal principles established
#- In a money decree, substantial loss lies in the inability of the respondent to refund the decretal sum should the appeal succeed, and the burden of proving that inability lies on the applicant.
- An application for stay of execution pending appeal requires balancing the applicant's right of appeal against the respondent's right to enjoy the fruits of judgment.
Court orders
#- 1.The Applicant shall release to the Respondent 50% of the decretal sum within the next thirty (30) days from the date of this ruling
- 2.The remainder of the decretal sum, being 50% thereof, shall be deposited in a joint interest earning account in the names of the parties' Advocates within the next forty-five (45) days from the date of this ruling
- 3.Failure to meet any of the foregoing conditions will lead to an automatic lapse of the stay hereby granted
- 4.The costs of this application will be costs in the appeal
- On appeal from
- Chief Magistrate's Court, Malindi
- Malindi CMELRC No. 4 of 2019
- Jurisdiction invoked
- 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, "Kanamai Timber & Hardware Limited v Bernard Katuti [2021] KEELRC 1975 (KLR)", Case Analysis (2021). Malindi CMELRC No. 4 of 2019 (appeal thereof). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1975/eng@2021-03-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.