Nyamu & 10 others v National Bank Of Kenya Limited (Cause 1476 of 2015) [2021] KEELRC 2207 (KLR)
The bottom line
#The court paused enforcement of the judgment, but only because the bank must first deposit the full amount owed in a joint account within 21 days.
What this practically means
#Executive summary
#Key legal issues
#Whether the application was made without unreasonable delay
The application filed about one month after judgment, before taxation of costs, was made without unreasonable delay
The court noted that under Section 94 of the Civil Procedure Act execution of a decree of a superior court before ascertainment of costs requires leave of the court. Since costs had not been taxed when the application was filed, there was no imminent danger of execution, and a judgment-debtor need not rush to seek stay before such danger arises. Reliance was placed on Eldoret Grains Limited v National Cereals Produce Board.
Whether the applicant will suffer substantial loss if stay is denied
Substantial loss was established because the claimants admitted they are unemployed, unemployable due to age, and have no other income from which the decretal sum could be recovered
Applying the precedent that substantial loss is the cornerstone of stay applications and that once an applicant expresses reasonable apprehension that a respondent cannot repay, the evidential burden shifts to the respondent, the court found the claimants' own admissions confirmed the applicant's apprehension that the decretal sum would be irrecoverable if execution proceeded and the appeal later succeeded.
Whether security for the due performance of the decree had been offered
Stay was granted on condition that the entire decretal sum plus taxed costs be deposited in a joint interest-earning account within 21 days, failing which the stay lapses
Both sides accepted that security should be given but differed on terms. The court preferred full deposit of the decretal sum plus costs into an interest-earning joint account over the claimants' proposal for partial release, holding that releasing any portion would prejudice the applicant given the claimants' admitted inability to refund the money should the appeal succeed.
Legal principles established
#- An application for stay of execution made after judgment but before ascertainment of costs is not made with unreasonable delay, since execution before taxation of costs requires leave of the court
- The legal burden of demonstrating that the decree-holder cannot refund the decretal sum lies on the applicant and must be founded on reasonable grounds before the evidential burden shifts
- Stay of execution should be granted where the applicant shows the decretal sum will not be readily recoverable and offers sufficient security for the decree-holder
Court orders
#- 1.An order for stay of execution of the judgment delivered on 24.1.2020 granted pending the hearing and determination of the intended appeal, on condition that the whole decretal sum plus the taxed costs of the suit are deposited within 21 days in an interest earning account in the joint names of counsel on record for both parties
- 2.In default of compliance by the applicant, the stay order shall lapse automatically after expiry of the 21 days' period
- 3.Should the default be caused by the claimant, the applicant will have liberty to seek leave to deposit the said security in Court
- 4.Costs of the application shall be in the Appeal
- Jurisdiction invoked
- Rule 32(2) of the Employment and Labour Relations Court (ELRC) Procedure Rules and Order 42 Rule 6 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyamu & 10 others v National Bank Of Kenya Limited (Cause 1476 of 2015) [2021] KEELRC 2207 (KLR)", Case Analysis (2021). Notice of Motion dated 5.3.2020 (in the main suit following judgment dated 24.1.2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2207/eng@2021-01-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.