https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12614

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **CIVIL APPELLATE DIVISION** **MISC. CIVIL APPLICATION NO. E106 OF 2026** **SNT PRODUCTION LIMITED.................................................APPLICANT** **VERSUS** **KITOK FILM PRODUCTION LIMITED................................RESPONDENT** **RULING** 1. This ruling is in respect to the application dated **5th March 2026** which is brought under Sections 3A and 79G of the Civil Procedure Act, Order 42 Rule 6 of the Civil Procedure Rules and all enabling provisions of the law. The Applicant seeks, inter alia, stay of execution of the Judgment of the Copyright Tribunal delivered on **17th February 2026** pending the hearing and determination of the intended appeal, an order directing the Tribunal to avail certified copies of proceedings and that the annexed draft Memorandum of Appeal be deemed duly filed upon payment of the requisite court fees. 2. The application is supported by the affidavit of **Serah Ndanu Teshna**, a director of the Applicant company, who depones that the Tribunal declared the parties joint copyright owners of the film ***Mombasa 338 Project*,** issued a permanent injunction restraining the Applicant from distributing or publishing the film to the exclusion of the Respondent, directed the Applicant to account for profits derived from the film, awarded the Respondent Kshs.2,500,000 as fair compensation together with costs and ordered that future profits be shared equally. The Applicant states that it is dissatisfied with the entire judgment and has prepared a draft Memorandum of Appeal raising arguable points of law and fact. 3. The Applicant contends that unless stay is granted, enforcement of the permanent injunction will halt ongoing commercial distribution, cinema releases, streaming arrangements and third-party licensing agreements thereby occasioning irreparable commercial loss incapable of compensation by an award of damages. It further argues that compliance with the order for accounts would compel disclosure of confidential commercial information before the appeal is heard and that payment of the monetary award would substantially prejudice its commercial operations. 4. The Respondent opposed the application through the Replying Affidavit of **Torah Onyango**, a director of the Respondent company. The Respondent states that it does not oppose the Applicant's constitutional right of appeal but insists that any stay should be conditional upon provision of adequate security under Order 42 Rule 6 of the Civil Procedure Rules. The Respondent expresses willingness to have the decretal amount deposited in a joint interest earning escrow account pending determination of the appeal. 5. The Respondent further avers that the Applicant has previously disregarded orders of the Copyright Tribunal by proceeding with the London premiere of the film despite interim injunctive orders issued on 16th October 2025 and has continued to commercially exploit the film while excluding the Respondent from the proceeds. It is therefore argued that unless adequate security is furnished, the Applicant will continue benefiting from the film while exposing the Respondent to further prejudice. 6. On 22nd April 2026, the applicant was granted 14 days to file a further affidavit and on 22nd June 2026 parties were directed to file and exchange written submissions to the application. As at the time of writing this ruling, the Applicant had not filed the further affidavit and parties had not filed their respective written submissions. This court will however proceed and write the ruling based on the pleadings on the record. 7. The Applicant’s case was that it has satisfied the conditions for grant of stay under Order 42 Rule 6(2) of the Civil Procedure Rules by demonstrating substantial loss, promptitude in bringing the application and willingness to abide by any conditions that the Court may impose. It argued that the appeal is arguable since it challenges the Tribunal's findings on copyright ownership, infringement, accounting of profits and the permanent injunction issued against it. 8. The Respondent, on the other hand, maintained that although the right of appeal should be preserved, that the Court should equally safeguard the Respondent's entitlement to enjoy the fruits of its judgment. It urged the Court to order security commensurate with the decree since the Applicant continues to commercially exploit the film despite the Tribunal's findings. **Analysis and Determination** 1. Having considered the application, affidavits and submissions, I find that the main issue falling for determination is whether the Applicant has made out a case for the granting of the order for stay pending appeal. 2. The applicable principles are found in Order 42 Rule 6(2) of the Civil Procedure Rules, which requires an applicant seeking stay pending appeal to demonstrate that substantial loss may result unless the order is made, that the application has been brought without unreasonable delay and that security has been offered for the due performance of the decree. 3. In ***Halai & Another vs. Thornton & Turpin* (1963) Ltd [1990] KLR** the Court of Appeal in held that the conditions for stay are mandatory. Likewise, in ***Butt vs. Rent Restriction Tribunal* [1982] KLR 417**, the Court emphasized that the discretion to grant stay should be exercised in a manner that preserves the subject matter of litigation while balancing the rights of both parties. 4. Further, in ***Gianfranco Manenthi & Another vs. Africa Merchant Assurance Co. Ltd* [2019] eKLR**, the Court reiterated that the purpose of security is not to punish an appellant but to safeguard the successful litigant should the appeal ultimately fail. 5. The Tribunal's judgment granted not only a monetary award of Kshs.2,500,000, but also injunctive relief restraining further commercial exploitation of the film to the exclusion of the Respondent, directed accounting for profits and declared the parties joint copyright owners of the film. I note that these are substantive orders whose implementation would significantly affect the Applicant's ongoing commercial operations pending appeal. 6. I am satisfied that the application was filed promptly following delivery of the Tribunal's judgment on 17th February 2026. I am equally persuaded that the intended appeal raises arguable questions regarding copyright ownership, exploitation rights and the consequential reliefs granted by the Tribunal. At this stage, the Court is not called upon to determine the merits of those issues but only to preserve the substratum of the intended appeal. 7. On the issue of substantial loss, the Applicant has demonstrated that enforcement of the permanent injunction and accounting orders may fundamentally alter the commercial position of the parties before the appeal is heard. Equally, the Respondent has demonstrated that it has an interest in securing the monetary award and ensuring that continued commercial exploitation of the film does not prejudice its proprietary rights. 8. In balancing these competing interests, I find that this is an appropriate case for grant of a conditional stay. My view is that such an order preserves the Applicant's undoubted right of appeal while adequately securing the Respondent's decree. 9. Consequently, I allow the Notice of Motion dated **5th March 2026** and make the following orders:- 10. ***There shall be a stay of execution of the Judgment and Decree of the Copyright Tribunal delivered on 17th February 2026 pending the hearing and determination of the intended appeal.*** 11. ***The stay granted herein is conditional upon the Applicant depositing the sum of Kshs.2,500,000, being the monetary award decreed by the Tribunal, in a joint interest-earning account in the names of the advocates for the parties within thirty (30) days from the date of this ruling.*** 12. ***Pending determination of the appeal, the Applicant shall maintain proper accounts of all revenues, proceeds and commercial exploitation arising from the film "Mombasa 338 Project", without prejudice to the issues in the intended appeal.*** 13. ***In default of compliance with order (b) above within the stipulated period, the stay granted herein shall automatically lapse without the necessity of any further order of the Court.*** 14. ***Costs of this application shall abide the outcome of the appeal.*** **It is so ordered.** **DATED, SIGNED AND DELIVERED VIRTUALLY THIS 30TH DAY OF JULY 2026** **HON W A OKWANY** **JUDGE**