Gerald Muthengi Ndatho v Peter Marigu Kirea
The bottom line
#To pause a debt judgment, you must prove the debtor has no assets, shifting the burden of proof onto them.
What this practically means
#Executive summary
#Key legal issues
#Substantial loss and burden of proof on ability to refund the decretal sum
The applicant established substantial loss; the respondent, having not deponed to his ability to refund or disclosed his source of income, failed to discharge the shifted evidential burden.
The court applied the Court of Appeal principle that while the legal duty lies on the applicant to show the appeal would be rendered nugatory, once inability to refund is alleged, the evidential burden shifts to the respondent, who must show his resources since that is peculiarly within his knowledge. The respondent disclosed no source of income.
Whether the application was brought without unreasonable delay
There was no inordinate delay; the memorandum of appeal and the application were filed within the statutory period under Section 79G of the Civil Procedure Act.
Judgment was delivered on 8th July 2020 and the memorandum of appeal together with the application were filed on 5th August 2020, within the period stipulated under Section 79G of the Civil Procedure Act, so the delay condition was satisfied.
Security for due performance of the decree
The applicant was ready to provide security; the court, in its discretion, ordered deposit of the decretal sum in an interest-earning account in the joint names of the parties' advocates.
The court noted it is discretionary to determine the kind of security. Since the applicant was appealing against apportionment of liability and quantum, a security ensuring the respondent would get some gains was appropriate, allowing the appeal to be pursued without substantial loss.
Legal principles established
#- Once an applicant alleges that a respondent would be unable to refund the decretal sum, the evidential burden shifts to the respondent to show what resources he has.
Court orders
#- 1.Stay of execution pending the hearing and determination of the appeal
- 2.The applicant to provide security by depositing the decretal sum in an interest earning bank account within 30 days in the joint names of the advocates for the parties
- 3.The ruling to apply in court file No. HCCCA No. 8/20
- 4.Costs in the cause
- On appeal from
- Trial court (magistrates' court)
- Jurisdiction invoked
- Order 42 rule 6(2) and Order 51 rule 1 Civil Procedure Rules; Sections 1A, 1B and 3A Civil Procedure Act (Cap 21)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gerald Muthengi Ndatho v Peter Marigu Kirea", Case Analysis (2020). HCCCA No. 8/20 (application dated 3rd August 2020). Source:
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.