Young Traders Limited v Evalisto Kule
The bottom line
#To pause a court order while appealing, you must prove you will suffer significant loss, acted promptly, and provide security.
What this practically means
#Executive summary
#Key legal issues
#Whether substantial loss was demonstrated
Substantial loss was established because the Respondents filed no Affidavits of Means showing ability to refund the decretal sum if the appeal succeeded.
The court applied the Muema test that substantial loss includes the hardship of recovering a decretal sum already paid. In the absence of proof by the Respondents of their ability to refund, the court was satisfied the Appellant would suffer substantial loss, satisfying the first condition.
Whether the application was filed without unreasonable delay
Yes. Judgment was delivered on 10th September 2019 (correcting the erroneous 3rd October 2019 date on the application) and the application was filed on 9th October 2019.
The court adopted the date in the Amended Decree and Certificate of Stated Costs dated 30th January 2020 as the correct delivery date, and found the roughly one-month interval constituted no undue delay, satisfying the second condition.
Whether security for the due performance of the decree was given
Yes. Although the Appellant did not offer security, the court could itself impose binding conditions on security, and did so by ordering a deposit of Kshs 61,305/= into a joint interest-earning account.
The court held the Appellant's silence on security was not fatal because Order 42 Rule 6(2)(b) contemplates such security as the court orders, which is ultimately binding on the applicant. The court therefore found the third condition met and imposed the deposit condition.
Legal principles established
#- The three conditions in Order 42 Rule 6(2) for a stay of execution pending appeal must all be met simultaneously; they cannot be severed.
- Substantial loss need not be a large sum; hardship in recovering a decretal sum paid out if the appeal succeeds suffices.
- An unopposed application must still be tested on its merits by the court.
Court orders
#- 1.Stay of execution of the decree in Milimani CMCC No 7008 of 2012 Evalisto Kule vs Young Traders Limited & 2 Others pending the hearing and determination of the Appeal, on condition that the Appellant deposits Kshs 61,305/= into an interest-earning account in the joint names of its advocates and the advocates for the 1st Respondent within thirty (30) days from the date of the Ruling
- 2.In the event of default on the deposit condition, the conditional stay of execution shall automatically lapse
- 3.Either party is at liberty to apply
- 4.Costs of the application in the cause
- On appeal from
- Chief Magistrate's Court (Milimani)
- CMCC No 7008 of 2012
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules, 2010 (appellate stay of execution jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Young Traders Limited v Evalisto Kule", Case Analysis (2020). Milimani CMCC No 7008 of 2012 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/kehc/2020/10021/eng@2020-07-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.