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High CourtAllowed

Notice of Motion dated 23rd October 2019 - Stay of Execution pending Appeal

High Court of Kenya
14 May 2020
862 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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You can pause a court's enforcement order by proving you meet three key conditions: timeliness, substantial loss, and offering security.

What this practically means

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Executive summary

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This was a Notice of Motion dated 23rd October 2019 seeking stay of execution of a decree from a judgment delivered by the lower court on 21st May 2019, pending an appeal against the dismissal of an application to set aside a default judgment entered against the applicant for failure to file a defence. The applicant, through its Legal Officer Ms. Morine Wangeci, contended that it would suffer substantial loss and its appeal would be rendered nugatory because the respondent had begun execution and could not refund the decretal amount of KShs.1,147,854 if the appeal succeeded; it had already deposited the entire decretal sum in a joint interest-earning account held by counsel for both parties. The respondent opposed the application as an abuse of process aimed at delaying the fruits of his judgment, but conceded the deposit had been made. On the hearing date only the applicant's counsel, Mr. Kiplagat, attended and the application proceeded ex parte. Applying Order 42 Rule 6 of the Civil Procedure Rules, the court found the three conditions satisfied: the application was filed about two weeks after the impugned ruling of 11th October 2019 and was thus timeous; the claim of substantial loss was unchallenged; and the fixed deposit receipt for the full decretal amount held jointly by counsel constituted sufficient security. The court allowed the motion, granted stay of execution on condition that the fixed deposit continue to be held as security pending disposal of the appeal, and ordered that costs of the application abide the outcome of the appeal.

Key legal issues

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01

Timeliness of the stay application

Holding

The application filed about two weeks after the impugned ruling was filed timeously.

Reasoning

The court measured the delay between delivery of the impugned ruling on 11th October 2019 and filing of the motion on 23rd October 2019, found the interval of about two weeks reasonable, and held the first condition satisfied.

p. 2
02

Substantial loss

Holding

The applicant established likelihood of substantial loss because the claim that the respondent could not refund the decretal amount if the appeal succeeded went unchallenged.

Reasoning

The court noted the respondent's replying affidavit did not dispute the applicant's assertion that recovery of the decretal amount from the respondent would be impossible should the appeal succeed, and therefore accepted the substantial loss claim as established.

p. 2
03

Security for the decree

Holding

The fixed deposit of KShs.1,147,854 in the joint names of both counsel constituted sufficient security.

Reasoning

The applicant exhibited a fixed deposit receipt for the entire decretal amount held jointly by counsel on record and expressed willingness to have it held as security; the respondent did not counter that the amount represented the entire decretal sum.

p. 2

Legal principles established

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  • An applicant for stay of execution under Order 42 Rule 6 must demonstrate that the application was filed timeously, that he is likely to suffer substantial loss if stay is not granted, and that he is ready and willing to offer security for the due performance of the decree.
  • An unchallenged claim of substantial loss and inability of the decree-holder to refund the decretal amount suffices to establish the substantial loss condition.

Court orders

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  1. 1.Stay of execution of the decree resulting from the judgment delivered by the lower court on 21st May 2019 pending the hearing and determination of the appellant's appeal
  2. 2.The fixed deposit of KShs.1,147,854 held at Equity Bank under account number [xxxx] by both counsel on record to continue to be held as security pending disposal of the appeal
  3. 3.Costs of the application to abide the outcome of the appeal
On appeal from
Lower court (magistrates' court)
Not stated
Jurisdiction invoked
Order 42 Rule 6 of the Civil 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, "Notice of Motion dated 23rd October 2019 - Stay of Execution pending Appeal", Case Analysis (2020). . Source: 

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