Makau v DIB Bank Kenya Limited (Petition E164 of 2022) [2023] KEELRC 2146 (KLR)
The bottom line
#A Kenyan employer won a pause on paying a Kshs 20.2 million award, but only by agreeing to deposit the full amount in a joint bank account within 21 days.
What this practically means
#Executive summary
#Key legal issues
#Whether the firm of Marende & Nyaundi Advocates was properly on record
Yes; the consent executed between the outgoing and incoming advocates satisfied Order 9 Rule 9, though the Court noted it was not a tidy approach and conditioned the representation on the incoming firm foregoing costs should the motion succeed.
The law envisages leave where judgment has been entered and another firm intends to take over. Here a consent was executed between the former advocate and the incoming advocate, filed with a Notice of Change of Advocates. The Court found this sufficient, albeit untidy, to effect the change post-judgment and allowed the firm on record.
Whether the stay application met the Order 42 Rule 6 threshold
Yes; the application was made timeously (Notice of Appeal filed 5 days after judgment), substantial loss was demonstrated given the size of the award and doubts about refund capability, and the offer of security (deposit of the decretal sum) satisfied the second limb.
The Court found the application brought timeously and not diversionary. It accepted that the decretal sum of Kshs 20,200,000 was substantial and that the Applicant had offered security by proposing an escrow deposit. It directed the deposit of the entire decretal sum in a joint interest-earning account within 21 days, failing which the stay would lapse.
Whether absence of a draft memorandum of appeal defeats a stay application
No; a trial court under Order 42 Rule 6 does not assess the merits of the intended appeal - that is for the Court of Appeal - and a notice of appeal suffices to treat the appeal as filed.
The Court accepted the Applicant's submission that assessing the prospects of the appeal lies within the precincts of the Court of Appeal and that the instant Court acts as a trial court on stay. It found the intended appeal was not a diversionary or delaying tactic, the Notice of Appeal having been filed 5 days after the decision.
Legal principles established
#- A consent between the outgoing and incoming advocates, though untidy, suffices to bring an incoming firm on record post-judgment under Order 9 Rule 9 of the Civil Procedure Rules.
- A trial court entertaining a stay application under Order 42 Rule 6 need not assess the arguability or prospects of the intended appeal; that is for the appellate court.
- Stay of execution may be granted on condition that the entire decretal sum is deposited in an interest-earning account in the joint names of counsel for both parties.
Court orders
#- 1.The firm of Marende & Nyaundi Advocates allowed to come on record for the Respondent/Applicant, conditional on foregoing any costs should their motion succeed.
- 2.Stay of execution of the judgment delivered on June 14, 2023 granted pending the intended appeal, on condition that the Respondent/Applicant deposits the entire decretal sum of Kshs 20,200,000 in an interest-earning account in the joint names of the Advocates for the Petitioner and Respondent within 21 days of the Ruling.
- 3.Should there be failure to deposit the sum due to the Respondent/Applicant's default or reasons wholly attributable to it, the stay to lapse on the 22nd day following the Ruling.
- 4.No costs awarded on the application.
- On appeal from
- null
- null
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending appeal), invoked by the Respondent/Applicant
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Makau v DIB Bank Kenya Limited (Petition E164 of 2022) [2023] KEELRC 2146 (KLR)", Case Analysis (2023). Petition No E164 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2146/eng@2023-09-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.