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ELRCAllowedCivil Suit No. 1904 of 2019 (appeal therefrom)· [2022] KEELRC 859 (KLR)

Amuiri Investments Limited v Benson Aswani [2022] KEELRC 859 (KLR)

Employment and Labour Relations Court (High Court status not stated; styled 'Judge' with civil suit appeal)
3 February 2022
MNMathews N. Nduma
702 words in judgment
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The bottom line

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A Kenyan court paused enforcement of a KSh 1.2 million judgment, but only because the money will be safely held in a joint bank account while the appeal proceeds.

What this practically means

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Executive summary

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This is a ruling on a Notice of Motion dated 6th September 2021 in which the applicant sought stay of execution of a judgment delivered by Hon. A.M. Obura (Mrs) on 19th August 2021 in Civil Suit No. 1904 of 2019, awarding the respondent Kshs. 1,222,383.85, pending hearing and determination of an intended appeal. The applicant contended that the appeal was arguable with high chances of success, that it would be rendered nugatory if stay was denied, and offered security. The respondent opposed, arguing there was no evidence of a request for certified proceedings to prosecute the appeal, that nugatory-ness had not been demonstrated, and sought that any stay be conditional on deposit of the decretal sum plus assessed costs in an interest-earning account; the respondent also flagged a cross-appeal seeking a further Kshs. 46,000. The applicant in a further affidavit maintained there was no delay and that it had requested certified copies and engaged the respondent's advocates on the deposit. Mathews N. Nduma, Judge, applied the principles in Butt v Rent Restrictions Tribunal (1982) KLR 417, including that the discretion should not prevent an appeal and that a stay should be granted where the appeal would otherwise be rendered nugatory. The Court found no inordinate delay, held the intended appeal arguable, and granted stay, directing the respondent to deposit the decretal sum in a joint interest-earning account in the names of both advocates within 30 days, failing which the stay would be automatically vacated. Costs of the application were to be in the cause.

Key legal issues

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01

Whether the conditions for grant of stay of execution pending appeal were satisfied

Holding

The Court was satisfied that the application was not visited by inordinate delay, the intended appeal is arguable, and the appeal may be rendered nugatory if stay is not granted; stay was granted on condition that the decretal sum be deposited in a joint interest-earning account within 30 days, failing which the stay lapses automatically.

Reasoning

The Court applied the principles in Butt v Rent Restrictions Tribunal (1982) KLR 417: the discretion must be exercised so as not to prevent an appeal; a stay should be granted where no overwhelming hindrance exists so that the appeal is not rendered nugatory; a judge should not refuse a stay on grounds that a better remedy may become available; and security may be ordered under Order 41 rule 4(2)(b) of the Civil Procedure Rules.

p. 2

Legal principles established

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  • The discretion to grant stay of execution should be exercised so as not to prevent an appeal and a stay should be granted where necessary to avoid rendering the appeal nugatory
  • The Court may order security upon application by either party or of its own motion when granting stay

Court orders

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  1. 1.Stay of execution of the judgment delivered on 19th August, 2021 in Civil Suit No. 1904 of 2019 by Hon. A.M. Obura (Mrs) pending hearing and determination of the intended appeal
  2. 2.The respondent to deposit the decretal sum in a joint interest earning account in the names of the advocates for the parties within 30 days from the date of the ruling, failing which the order for stay shall be automatically vacated
  3. 3.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder XL1, rule 4(2)(b)

Cases cited (1)

  • Butt –vs- Rent Restrictions Tribunal
    (1982) KLR 417
On appeal from
Court not named in judgment (judgment delivered by Hon. A.M. Obura (Mrs))
Civil Suit No. 1904 of 2019
Jurisdiction invoked
Order XL1, rule 4(2)(b) of the Civil Procedure Rules (stay of execution pending appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Amuiri Investments Limited v Benson Aswani [2022] KEELRC 859 (KLR)", Case Analysis (2022). Civil Suit No. 1904 of 2019 (appeal therefrom). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/859/eng@2022-02-03

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.