[1999] KECA 23 (KLR)
The Court of Appeal found that the applicant's offer to pay the decretal amount by monthly instalments was not unreasonable given the prevailing economic conditions. The respondent's conduct in locking the applicant's premises, thereby preventing it from trading and raising funds to pay the debt, was a relevant...
Source-derived case information.
- Citation
- [1999] KECA 23 (KLR)
- Parties
- Appellant: Bandaptai Agro & Hardware Limited; Respondent: MEA Limited
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 71 of 1999
- Procedural Posture
- Stay Application / Application for Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution allowed.
- Judges
- RO Kwach, E Owuor
- Legal Topics
- Stay of Execution, Instalment Payment Orders, Judgment Enforcement, Discretion of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bandaptai Agro & Hardware Limited
Appellant
MEA Limited
Respondent
Procedural Posture
Stay Application / Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the High Court's order pending appeal.
- 2 Whether the offer to pay the decretal amount by monthly instalments is reasonable under the circumstances.
- 3 Whether the respondent's conduct in locking the applicant's premises should affect the grant of stay.
Ratio Decidendi
The Court of Appeal found that the applicant's offer to pay the decretal amount by monthly instalments was not unreasonable given the prevailing economic conditions. The respondent's conduct in locking the applicant's premises, thereby preventing it from trading and raising funds to pay the debt, was a relevant factor. The High Court failed to consider these aspects and may not have exercised its discretion correctly. Accordingly, the Court of Appeal granted a stay of execution, lifted the attachment, ordered the respondent to open the premises, and directed the applicant to pay Shs 600,000/= per month pending the determination of the intended appeal.
Court Disposition
Application for stay of execution allowed.
Orders
- Stay of the order of Rimita J dated 17th March, 1999 is granted.
- Attachment is lifted and respondent is ordered to open the premises and give the applicant unimpeded access.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL AT NAIROBI (CORAM: KWACH, SHAH & OWUOR, JJ.A.) CIVIL APPLICATION NO. NAI. 71 OF 1999 (UR.27/99)
BETWEEN
BANDAPTAI AGRO & HARDWARE LIMITED .................. APPELLANT
AND
MEA LIMITED ........................................RESPONDENT
(An application for stay of execution of the order
and decree pending the lodging and hearing of an
intended appeal from the ruling and order of the
High Court of Kenya at Nakuru (Hon. Justice D. Rimita)
dated 17th March, 1999
in
H.C.C.C. NO. 474 OF 1997)
***************
RULING OF THE COURT
This is an application under rule 5 (2)(b)of the Court of Appeal Rules for a stay of execution of the ruling and order of Rimita J given on 17th March, 1999. By that decision the learned Judge dismissed an application byBandaptai Agro & Hardware Limited (the applicant) for a stay of execution and for payment of the decretal amount by instalments.
MEA Limited (the respondent) had filed a suit in the superior court against the applicant to recover Shs 16,348,702/40 being the value of goods sold and delivered to the applicant by the respondent. The applicant filed a sham defence which was struck
out and judgment entered in favour of the respondent.
In the process of executing the decree issued in its favour, the respondent not only attached the goods lying in the applicant’s business premises but also locked up the premises.The result is that the applicant cannot trade at all and yet the respondent expects to be paid the money due under the decree. In rejecting the applicant’s offer of Shs 500,000/= per month, the learned Judge did not comment on the conduct of the respondent. On the face of it, the offer by the applicant to pay the decretal amount by monthly instalments of Shs 500,000/= does not seem to us to be unreasonable given the present economic situation in Kenya. On appeal, this Court may well come to the conclusion that in rejecting that offer the learned Judge did not exercise his discretion correctly.
In the result, we allow this application and grant a stay of the order of Rimita J dated 17th March, 1999. We lift the attachment and order the respondent to open the premises and give the applicant unimpeded access. The applicant will pay the respondent Shs 600,000/= per month with effect from 1st May, 1999 pending the hearing and final determination of the intended appeal. Costs of the application to be in the appeal.
Dated and delivered at Nairobi this 30th day of March, 1999.
R. O. KWACH
..................
JUDGE OF APPEAL
P. K. TUNOI
....................
JUDGE OF APPEAL
E. OWUOR
....................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR