BENSON HINGA KINYANJUI v VERSUSFRANCIS KIMEGHO NGALA
The bottom line
#If you face delays or execution, showing a reasonable excuse and offering security can help you pause the legal process.
What this practically means
#Executive summary
#Key legal issues
#Whether the matter was compromised by consent
The court found no basis to conclude the matter was compromised, as the consent letter bore no court stamp and there was no evidence it was adopted as a court order.
The respondent alleged the parties consented to reduce the award to Kshs.800,000 and that a consent was filed on 4th September 2020. The court examined the correspondence and the consent letter of 2nd July 2020 but found no court stamp showing receipt and no evidence of adoption as an order, and no credible evidence the decretal sum was satisfied. The applicants did not respond to this issue, but the evidential gaps meant no compromise could be established.
Leave to appeal out of time
Leave granted: the eight-month delay was not inordinate, the Covid-19 pandemic and advocate handover difficulties furnished reasonable explanation, the appeal was arguable, and no prejudice to the respondent was shown.
Applying the Thuita Mwangi principles (length and reason for delay, arguability, prejudice), the court found the delay explained by instructions-taking, an advocate leaving the firm without handover, and Covid-19 disruptions including court closures and restricted movement. The draft memorandum challenging excessive general damages raised arguable points, and the respondent showed no prejudice incapable of compensation by costs.
Stay of execution pending appeal
Stay granted on condition the applicants deposit the entire decretal sum in an interest-earning joint account within 30 days, failing which the stay lapses.
Under Order 42 Rule 6(2), the delay condition was already addressed; substantial loss was shown because execution had commenced and the applicants feared inability to recover the decretal sum if paid and the appeal succeeded, with no rebuttal from the respondent on refund capacity; and the applicants' offer to deposit the decretal sum in a joint interest-earning account was reasonable security.
Legal principles established
#- An appeal may be admitted out of time where sufficient cause is shown under Section 79G of the Civil Procedure Act, and courts may enlarge expired time under Section 95 and Order 50 Rule 5.
- Execution is a lawful process; substantial loss must be shown by factors beyond the mere fact of execution.
- Where an applicant reasonably fears the respondent cannot refund the decretal sum, the evidential burden shifts to the respondent to show his resources.
Court orders
#- 1.The applicants are granted leave of 14 days to appeal out of time
- 2.Stay of execution of the judgment on condition that the applicants deposit the entire decretal sum in an interest earning account held in the joint names of the parties' advocates and/or firms of advocates within 30 days, failing which the stay automatically lapses
- 3.Costs of the application to abide the outcome of the appeal
- On appeal from
- Chief Magistrate's Court, Milimani Commercial Courts
- CMCC No. 10843 of 2018
- Jurisdiction invoked
- Sections 79G and 95 of the Civil Procedure Act and Order 50 Rule 5 and Order 42 Rule 6(2) of the Civil Procedure Rules (appellate/stay jurisdiction over a subordinate court decision)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "BENSON HINGA KINYANJUI v VERSUSFRANCIS KIMEGHO NGALA", Case Analysis (2020). Not stated in the judgment (arising from Milimani CMCC No. 10843 of 2018). Source:
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.