Kamundi v Nilson & 2 others (Cause E021 of 2021) [2023] KEELRC 636 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Substantial loss
Substantial loss was established because the applicants registered apprehension that the claimant could not refund the decretal sum and the claimant adduced no documentary evidence of his means
Applying the National Industrial Credit Bank Ltd v Aquinas Francis Wasike principle, once the applicants expressed reasonable fear that the claimant could not refund the decretal sum, the evidential burden shifted to the claimant. The claimant alleged ownership of land but failed to produce title deeds or any evidence of capacity to refund, so the court found substantial loss would be occasioned if stay were withheld.
Promptitude of the application
The application was filed without undue delay
The impugned judgment was delivered on September 28, 2022 and a stay application was filed on October 19, 2022. Although that application was withdrawn on January 18, 2023 and the instant motion filed the same day, the court held that in the circumstances the stay application was made timeously.
Security for the due performance of the decree
Security in the form of both a cash deposit and an Insurance Bond was imposed as the condition for stay
The applicants offered an Insurance Bond but did not identify the insurer. The claimant sought a cash deposit or joint account. The court observed that both parties would have difficulty raising the decretal sum and that the purpose of security is to prevent the appeal being rendered nugatory while preserving the decree holder's enjoyment of the judgment, leading to a hybrid security condition.
Legal principles established
#- Where an applicant expresses a reasonable fear that a respondent would be unable to repay the decretal sum, the evidential burden shifts to the respondent to demonstrate his resources
Court orders
#- 1.Stay of execution of the judgment of September 28, 2022 granted pending appeal on conditions
- 2.Applicants to deposit in court Kshs.300,000.00 within 21 days
- 3.Applicants to deposit in court within 30 days an Insurance Bond for the balance of the decretal sum from a reputable insurance company and serve the claimant
- 4.In default of any of the above conditions the stay order shall lapse automatically
- 5.Costs of the application to abide the outcome of the appeal
- Jurisdiction invoked
- Order 42 rule 6(2) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kamundi v Nilson & 2 others (Cause E021 of 2021) [2023] KEELRC 636 (KLR)", Case Analysis (2023). Civil Appeal No.149 of 2022 (arising from ELRC suit; motion dated January 17, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/636/eng@2023-03-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.