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Court of AppealPartially AllowedCivil Application No. Nai. 71 of 1999 (UR.27/99)

BANDAPTAI AGRO & HARDWARE LIMITED vs MEA LIMITED (? 71 of 1999) [1999] KECA 56 (KLR)

Court of Appeal
30 March 1999
RKR. O. KwachPhilip Kiptoo TunoiP. K. TunoiEOE. Owuor
454 words in judgment
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The bottom line

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Kenya's Court of Appeal stopped seizure of a debtor's premises, lifting an attachment and ordering monthly payments while an appeal is heard.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi on an application under rule 5(2)(b) of the Court of Appeal Rules for a stay of execution of a ruling and order of Rimita J of the High Court at Nakuru dated 17th March 1999, delivered in H.C.C.C. No. 474 of 1997. The High Court had dismissed the applicant's application for a stay of execution and for payment of the decretal amount by instalments. The underlying decree arose from MEA Limited's successful suit to recover Shs 16,348,702/40 for goods sold and delivered; the applicant's defence was struck out as a sham and judgment entered for the respondent. In execution, the respondent attached goods in the applicant's premises and locked the premises, leaving the applicant unable to trade. The Court of Appeal observed that the applicant's offer to pay Shs 500,000/= per month did not seem unreasonable given Kenya's economic situation, and that the learned Judge, in rejecting that offer without commenting on the respondent's conduct, may not have exercised his discretion correctly. The court allowed the application, granted a stay of the order of 17th March 1999, lifted the attachment, ordered the respondent to open the premises and give the applicant unimpeded access, and directed the applicant to pay Shs 600,000/= per month from 1st May 1999 pending the intended appeal. Costs of the application were made costs in the appeal. The decision binds subordinate courts and the High Court on the exercise of stay discretion in comparable circumstances.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant should be granted a stay of execution of the High Court ruling and order of 17th March 1999 pending the lodging and hearing of an intended appeal
  2. 2.Whether the applicant's offer to pay the decretal amount by monthly instalments was reasonable such that the learned Judge's rejection of it may have been a wrong exercise of discretion

Key legal issues

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01

Whether a stay of execution should issue pending an intended appeal where the decree-holder has attached goods and locked up the judgment-debtor's business premises

Holding

The application was allowed; the court granted a stay, lifted the attachment, ordered the premises opened with unimpeded access, and substituted monthly instalment payments of Shs 600,000/=.

Reasoning

The respondent had not only attached goods but also locked up the applicant's premises, leaving the applicant unable to trade while still being expected to pay the decree. The applicant's offer of Shs 500,000/= per month did not seem unreasonable given Kenya's economic situation, and the Judge's rejection of it without commenting on the respondent's conduct suggested the discretion may not have been correctly exercised. The court therefore granted a stay on terms requiring monthly payments.

p. 2

Legal principles established

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  • An appellate court may interfere where the trial judge's rejection of a reasonable instalment offer amounts to a failure to exercise discretion correctly, and may grant a stay with conditions including lifting attachment and restoring access to premises.

Court orders

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  1. 1.Stay granted of the order of Rimita J dated 17th March 1999
  2. 2.The attachment is lifted
  3. 3.The respondent to open the premises and give the applicant unimpeded access
  4. 4.The applicant to pay the respondent Shs 600,000/= per month with effect from 1st May 1999 pending the hearing and final determination of the intended appeal
  5. 5.Costs of the application to be in the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

RK
majority
Philip Kiptoo Tunoi
majority
EO
majority
On appeal from
High Court of Kenya at Nakuru
H.C.C.C. No. 474 of 1997
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Relief refused

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Instalment payment at the applicant's offered rate of Shs 500,000/= per month

The court substituted its own higher instalment figure of Shs 600,000/= per month instead of the applicant's offered Shs 500,000/= per month

p. 2

Costs

Costs of the application to be in the appeal.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the result, we allow this application and grant a stay of the order of Rimita J dated 17th March, 1999.
p. 2Final orders - stay granted
We lift the attachment and order the respondent to open the premises and give the applicant unimpeded access.
p. 2Final orders - lifting of attachment and access to premises
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.
p. 2Final orders - conditional instalment payments
On appeal, this Court may well come to the conclusion that in rejecting that offer the learned Judge did not exercise his discretion correctly.
p. 2Appellate interference with discretionary decisions

Issues in the judgment

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material

The coram listing names Kwach, Shah and Owuor JJ.A, but the signature block records R. O. Kwach, P. K. Tunoi and E. Owuor as the judges; the second judge is named differently in the two places.

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, "BANDAPTAI AGRO & HARDWARE LIMITED vs MEA LIMITED (? 71 of 1999) [1999] KECA 56 (KLR)", Case Analysis (1999). Civil Application No. Nai. 71 of 1999 (UR.27/99). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1999/56/eng@1999-03-30

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