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Court of AppealDismissedCivil Application (Rule 5(2)(b)) arising from HCCC No 1943 of 1988· [1989] KECA 66 (KLR)

Jethwa v Shah t/a Supreme Styles [1989] KECA 66 (KLR)

Court of Appeal
10 July 1989
JNJ.O. NyarangiJGJ.E. GicheruRKR.O. Kwach
790 words in judgment
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The bottom line

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The Court of Appeal refused a stay of execution, confirming that a Kenyan applicant must prove the other side cannot repay — not just claim it.

What this practically means

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Executive summary

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This was an application under rules 1(3) and 5(2)(b) of the Court of Appeal Rules seeking a stay of execution of a judgment, decree and taxed costs of the High Court at Nairobi (Pall Ag J, HCCC No 1943 of 1988) pending an intended appeal. The applicant, against whom a money decree had been entered, argued that the respondent was impecunious and that the appeal would be rendered nugatory, relying partly on a post-dated cheque allegedly given conditionally as escrow, and citing Jogoo Kimakia Bus Service Ltd v Electrocom International Ltd and Kundanlal Restaurant v Devshi & Company. The Court of Appeal (Nyarangi, Gicheru and Kwach, Ag JJA) held in a single judgment that an applicant with a money decree must demonstrate both nugatory-ness and the respondent's impecuniosity with facts and figures, not bare assertions. The burden of proving impecuniosity rests throughout on the applicant and never shifts to the respondent, who need not produce bank statements to prove financial health. The court distinguished Jogoo Kimakia on its facts, found Kundanlal irrelevant, and noted that lodging a Notice of Appeal does not itself stay execution. The respondent, as the successful party below, had an interest in the subject matter pending appeal. The application was dismissed with costs in the intended appeal.

Key legal issues

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01

Requirements for stay of execution of a money decree pending appeal

Holding

An applicant with a money decree against him must show the appeal would be rendered nugatory and that the respondent is impecunious; mere assertion of impecuniosity is insufficient.

Reasoning

The court reiterates that a stay preserves the subject matter so a successful appeal is not nugatory. Where the decree is monetary, the applicant must adduce concrete facts and figures showing the respondent cannot repay; bare affidavits of dealings do not discharge that burden, and the respondent need not prove financial health.

p. 1
02

Burden of proof on impecuniosity

Holding

The burden lies throughout on the applicant and never shifts to the respondent to prove a healthy financial position.

Reasoning

Applying the evidentiary rule that the burden of proof as to a fact lies on the person who wishes the court to believe in its existence, the court held the applicant ought to have furnished facts and figures of his dealings with the respondent, and the respondent was under no obligation to produce bank statements.

p. 2
03

Effect of lodging a Notice of Appeal

Holding

Lodging a Notice of Appeal or instituting an appeal per se does not operate as a stay of execution or proceedings.

Reasoning

The court disposed of the applicant's reliance on Halsbury's Laws, holding that filing a Notice of Appeal does not stay execution, which is why an application under rule 5(2)(b) is required; the cited paragraph was irrelevant.

p. 2

Legal principles established

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  • An applicant for stay must show the appeal will be rendered nugatory and, for a money decree, that the respondent is impecunious
  • The burden of proving impecuniosity lies on the applicant and does not shift to the respondent

Court orders

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  1. 1.The Notice of Motion is dismissed
  2. 2.The costs of the Notice of Motion shall be costs in the intended appeal

Authorities

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Legislation

  • Rules of this Court (Court of Appeal Rules)rule 1(3)
  • Rules of this Court (Court of Appeal Rules)rule 5(2)(b)

Cases cited (2)

  • Jogoo Kimakia Bus Service Ltd. v Electrocom International Ltd
    Civil Application No NAI 63 of 1984
  • Kundanlal Restaurant v Devshi & Company
    (1952) XIX EACA 77
On appeal from
High Court at Nairobi
HCCC No 1943 of 1988
Jurisdiction invoked
Rules of this Court, rule 1(3) and rule 5(2)(b)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (17)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Jethwa v Shah t/a Supreme Styles [1989] KECA 66 (KLR)", Case Analysis (1989). Civil Application (Rule 5(2)(b)) arising from HCCC No 1943 of 1988. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1989/66/eng@1989-07-10

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