Endmor Steel Millers Ltd v Mburu (Appeal E14 of 2022) [2023] KEELRC 635 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the applicant demonstrated substantial loss to justify stay of execution pending appeal
The applicant demonstrated substantial loss; the respondent did not show ability to refund the decretal sum if the appeal succeeded, shifting the evidential burden to him.
The applicant argued execution was imminent and the decretal sum would be irrecoverable if the appeal succeeded. Under National Industrial Credit Ltd v Francis Wasike, once an applicant expresses reasonable fear that the respondent cannot repay, the burden shifts to the respondent to demonstrate his resources. The respondent here failed to demonstrate ability to repay, as in Victor Ogola v Mary Waithe Kihiu, so substantial loss was established.
Whether the application was made without unreasonable delay
The application filed slightly over one month after the judgment was not an unreasonable delay.
The trial judgment was delivered on August 4, 2022 and the application filed on September 9, 2022, slightly over a month later. The court held this was not unreasonable delay, a position the respondent conceded in submissions.
Whether the applicant's offer of security satisfied Order 42 rule 6(2)(b)
The applicant's readiness and willingness to furnish security satisfied the condition; the nature of security is a matter for the court's discretion.
The applicant expressed readiness and willingness to furnish security. Relying on Mwaura Karuga (cited by the respondent), the ultimate decree envisaged includes costs and interest, and the rule confers discretion on the court to determine the nature of security while balancing the parties' rights. The court directed deposit of the decretal amount in a joint interest-earning account.
Legal principles established
#- Once an applicant expresses a reasonable fear that a respondent would be unable to pay back the decretal sum, the evidential burden shifts to the respondent to show what resources he has, as a matter peculiarly within his knowledge.
- Order 42 rule 6(2)(b) confers discretion on the court to determine the nature of security to be furnished in light of the circumstances, balancing the respective rights of the parties.
Court orders
#- 1.The interim orders granted on September 16, 2022 are affirmed and extended pending the hearing and determination of the appeal against the judgment in Mavoko MCEL No 98 of 2019
- 2.The applicant shall deposit the decretal amount in an interest earning account jointly held by counsels for the parties on record within 45 days
- 3.Applicant shall expedite the filing of the record of appeal and take steps to have the same listed for hearing within 45 days from the date of the ruling
- 4.Failure to observe orders (b) and (c) shall entitle the respondent to execute the judgment and decree unless the duration is extended by the court
- 5.Costs shall be in the appeal
- On appeal from
- Principal Magistrate's Court, Mavoko
- Mavoko MCEL No. 98 of 2019 (John Ngotho Mburu v Endmor Steel Millers Ltd)
- Jurisdiction invoked
- Sections 79G, 95, 63(e), 1A, 1B and 3A of the Civil Procedure Act; Order 42 rule 6 and Order 51 rule 1 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Endmor Steel Millers Ltd v Mburu (Appeal E14 of 2022) [2023] KEELRC 635 (KLR)", Case Analysis (2023). Notice of motion dated September 8, 2022 (arising from Mavoko MCEL No. 98 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/635/eng@2023-03-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.