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High CourtAllowed· [2019] KEHC 11165 (KLR)

IMARA STEEL MILLS LIMITED v JONDU ENTERPRISES LIMITED

High Court of Kenya
9 April 2019
JKJ. KAMAU
2,555 words in judgment
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The bottom line

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Missing an appeal deadline doesn't always end your case, but you must secure the judgment with a deposit to stop enforcement.

What this practically means

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Executive summary

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The Applicant, through a Notice of Motion dated 12th September 2018, sought extension of time to file an appeal out of time and a stay of execution of a decree issued on 5th September 2018 following a summary judgment ruling delivered by the Learned Trial Magistrate on 17th August 2018. The Applicant, whose Chief Executive Officer Lawrence Wanjohi swore the supporting affidavit, argued that it had raised triable issues, that the appeal would be rendered nugatory because the Respondent had extracted the decree and instructed an auctioneer to proclaim its property, and that it could not recover the decretal sum of Kshs 11,951,974/= if the appeal succeeded. The Respondent, through its Director Johnson Ndung'u Njau, opposed the application as misconceived, contending that the Applicant was indolent, had not explained the delay, had not demonstrated triable issues, and had not offered security. The court framed two issues: whether leave to file the appeal out of time should be granted, and whether a stay of execution should be granted. On the first, the court held that a two-month delay was not inordinate and that the Respondent had not demonstrated prejudice, weighing the right of access to court under Article 50 against the right to enjoy the fruits of judgment. On the second, the court found substantial loss in the potential inability to recover the decretal sum, held the three conditions of Order 42 Rule 6(2) must be met simultaneously, and imposed a Kshs 3,000,000/= deposit as security on its own motion, giving the Applicant the benefit of doubt on the notice of delivery of the Ruling. The application was allowed with costs in the cause.

Key legal issues

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01

Extension of time to file an appeal out of time

Holding

A two-month delay was not inordinate and no prejudice to the Respondent was demonstrated; leave was granted.

Reasoning

The court weighed the right of access to court under Article 50 against the right to enjoy the fruits of judgment. The delay of two months after the Ruling was held not inordinate, and the Respondent failed to demonstrate any prejudice it had suffered or would suffer if extension was granted.

p. 3
02

Stay of execution pending appeal

Holding

Stay granted conditionally with a Kshs 3,000,000/= deposit, the court imposing security on its own motion despite the Applicant not offering any.

Reasoning

The court found substantial loss in the difficulty of recovering the decretal sum if the appeal succeeded, and found the application timely. Although the Applicant did not offer security, the court held it could impose conditions itself and did so, giving the Applicant the benefit of doubt on the notice of delivery of the Ruling.

p. 4
03

Notice of delivery of the trial court's Ruling

Holding

The Respondent's assertion that the Applicant's advocates were served with notice had no documentary support and was given little weight.

Reasoning

The court held it is the duty of the court to issue notices for delivery of decisions to be delivered on notice. Absent proof that notice was issued, it would be unfair to condemn the Applicant for not attending the delivery of the Ruling.

p. 4

Legal principles established

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  • The three conditions in Order 42 Rule 6(2) for a stay of execution cannot be severed; all three must be met simultaneously.
  • Difficulty in recovering a decretal sum upon a successful appeal amounts to substantial loss.
  • Failure by an applicant to offer security is not fatal; the court may impose security conditions on its own motion.

Court orders

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  1. 1.Leave granted to file the Memorandum of Appeal out of time, to be filed within fourteen (14) days
  2. 2.Stay of execution granted conditionally: Applicant to deposit Kshs 3,000,000/= into an interest-earning account in the joint names of both parties' advocates within sixty (60) days (by 14th June 2019)
  3. 3.Conditional stay to automatically lapse upon default on the deposit
  4. 4.Appellant to file and serve its Record of Appeal within sixty (60) days (by 14th June 2019)
  5. 5.Deputy Registrar, High Court, Milimani Law Courts directed to facilitate typed certified proceedings and the lower court file
  6. 6.Either party at liberty to apply

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 79G, 95
  • Civil Procedure RulesOrders 21 Rule 12(2), 42 Rule 6(1)(2)(1)(a)(b)(3), 50 Rule 6
  • High Court (Practice and Procedure) RulesRule 3(2)
  • Constitution of KenyaArticle 50

Cases cited (6)

  • Nicholas Kiptoo Arap Korir Salat vs Independent Electoral and Boundaries Commission & 7 Others
    [2014] eKLR

    Principles governing the unfettered discretion to extend time for filing an appeal

  • Johnson Mwiruuti Mburu vs Samuel Macharia Ngure Justice Nyamu (sic)
    citation not given

    Inability to pay the decretal sum is sufficient to justify a stay of execution pending appeal

  • Paul Musii Wambua vs Attorney General & 2 Others
    [2015] eKLR

    Factors for exercising discretion to extend time: delay, reasons, chances of success, prejudice

  • Haywood vs Cope
    [1858] 25 BEAV 140

    The person who seeks an equitable remedy must be prepared to act equitably

  • Chris Munga N Bichage vs Richard Nyagaka Tongi & 2 Others
    [2013] eKLR

    An applicant must satisfy all conditions of Order 42 Rule 6(2) before a stay is granted

  • Kinyunjuri Muguta vs Wotuku Muguta
    [2018] eKLR

    An applicant must satisfy all conditions of Order 42 Rule 6(2) before a stay is granted

On appeal from
Trial Magistrate's Court
Not stated in the judgment
Jurisdiction invoked
Sections 1A, 1B, 3A and 95 of the Civil Procedure Act; Orders 21 Rule 12(2), 42 Rule 6(1)(2)(1)(a)(b)(3) and 50 Rule 6 of the Civil Procedure Rules; Rule 3(2) of the High Court (Practice and Procedure) Rules

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, "IMARA STEEL MILLS LIMITED v JONDU ENTERPRISES LIMITED", Case Analysis (2019). . Source:

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