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Case Brief · caselaw.co.ke
High CourtAllowedMilimani CMCC No 7008 of 2012 (Appeal)· [2020] KEHC 10021 (KLR)

Young Traders Limited v Evalisto Kule

High Court of Kenya
28 July 2020
1,130 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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To pause a court order while appealing, you must prove you will suffer significant loss, acted promptly, and provide security.

What this practically means

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Executive summary

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Young Traders Limited, the Appellant, moved the High Court by Notice of Motion dated 8th October 2019 seeking a stay of execution of the judgment and decree in Milimani CMCC No 7008 of 2012 (Evalisto Kule vs Young Traders Limited & 2 Others) pending its appeal. It contended it was aggrieved by the entire judgment, would suffer substantial loss and prejudice, and that its appeal, with high chances of success, would be rendered nugatory. It relied on Nairobi Women's Hospital vs Purity Kemunto. The Respondents, despite directions, filed neither a response nor submissions, so the application was technically unopposed; the court nonetheless held it had a duty to test the application on its merits. Applying Order 42 Rule 6(2) of the Civil Procedure Rules, 2010, the court held the three conditions - substantial loss, no unreasonable delay, and security - are cumulative and must all be met. On substantial loss, it applied G.N. Muema P/A Mt View Maternity & Nursing Home vs Miriam Maalim Bishar & Another, and, noting the Respondents had filed no Affidavits of Means showing ability to refund the decretal sum, found substantial loss established. Correcting the erroneous delivery date on the application, the court adopted 10th September 2019 as the judgment date and found the application filed on 9th October 2019 without undue delay. Although the Appellant had not offered security, the court held this was not fatal since it could impose binding conditions, and found the third condition met. The application was allowed in Prayer No (3): a conditional stay of execution upon deposit of Kshs 61,305/= into a joint interest-earning account within thirty days, failing which the stay lapses automatically; either party at liberty to apply; costs in the cause.

Key legal issues

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01

Whether substantial loss was demonstrated

Holding

Substantial loss was established because the Respondents filed no Affidavits of Means showing ability to refund the decretal sum if the appeal succeeded.

Reasoning

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.

p. 2
02

Whether the application was filed without unreasonable delay

Holding

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.

Reasoning

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.

p. 2
03

Whether security for the due performance of the decree was given

Holding

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.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 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. 2.In the event of default on the deposit condition, the conditional stay of execution shall automatically lapse
  3. 3.Either party is at liberty to apply
  4. 4.Costs of the application in the cause

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 Rule 6(2) and Order 42 Rule 6(2)(b)

Cases cited (2)

  • Nairobi Women’s Hospital vs Purity Kemunto
    [2018] eKLR
  • G.N. Muema P/A (sic) Mt View Maternity & Nursing Home vs Miriam Maalim Bishar & Another
    [2018] eKLR

    Definition of substantial loss: hardship of recovering a decretal sum paid out if the appeal succeeds renders the appeal nugatory.

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

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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, "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.