INDUSTRIAL & COMMERCIAL DEVELOPMENT CORPORATION vs DABER ENTERPRISES LIMITED [1999] KECA 146 (KLR)
The bottom line
#Kenya's Court of Appeal stopped enforcement of a Shs. 11.8 million judgment, confirming money decrees can be paused pending appeal when circumstances justify it.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the intended appeal is arguable (not frivolous)
- 2.Whether the success of the appeal would be rendered nugatory if stay of execution is not granted
Key legal issues
#Whether the intended appeal was arguable
The appeal was arguable: whether the respondent's request for extension of time amounted to a variation of the contract, whether the offer of sale was revoked, and whether special damages of Shs. 11,800,000 were strictly provable were all matters fit for trial.
The court found it arguable that the respondent's request for more time to pay the balance sought to vary the contract terms, and that what was agreed between Mr. Mbai and the Deputy Corporation Secretary was a matter for trial. It was also arguable whether the offer of sale was revoked. On damages, the judgment rested on a third party's offer to purchase, which would require cross-examination.
Whether the appeal would be rendered nugatory absent a stay
Yes - the amount at stake exceeded Shs. 12,000,000, the respondent was not shown to be a company of means, and the applicant corporation was substantial enough to repay if the respondent ultimately succeeded.
The onus lay on the applicant to show that money paid would not be recoverable. The respondent had needed time to raise Shs. 2.4 million and did not rebut the applicant's statement of 'no known assets'. Counsel for the respondent did not seek time to file a replying affidavit. The court was satisfied the applicant could pay any decretal amount if the appeal failed.
Whether stay of a money decree can be granted
The general rule against stay of money decrees has been modified; a stay may be granted in respect of money decrees where the circumstances demand.
Counsel for the respondent relied on Kenya Shell Limited v Karuga & Another for the proposition that stay of a money decree is not normally granted. The court held that this authority had at the very least been modified by Kenindia Assurance and Nairobi Duluxe Services, which permit stay of money decrees where circumstances demand.
Legal principles established
#- On a rule 5(2)(b) application the applicant must show an arguable appeal and that the appeal would be rendered nugatory if the order sought is not granted.
- Special damages must be strictly proved and are deemed traversed unless specifically admitted.
- A stay of execution may be granted even in respect of money decrees if the circumstances of the case so demand.
Court orders
#- 1.Stay of execution of the decree in the High Court granted until the determination of the intended appeal
- 2.Costs of the application to be in the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi, Milimani
- H.C.C.C. No. 113 of 1999
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (application for stay of execution pending intended appeal)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
At this stage we are only bound to inquire as to whether or not there is an arguable appeal and if so, would the success of the appeal be rendered nugatory if the order sought is not granted?
Special damages have to be strictly proved. The applicant had not admitted any damages which are always in issue unless admitted.
if the circumstances of the case so demand a stay order can be granted even in respect of money decrees
The upshot of all this is that we hereby grant a stay of execution of the decree in the High Court in this matter until the determination of the intended appeal. Costs of this application shall be in the intended appeal.
Issues in the judgment
#The judgment header dates the High Court ruling as 5th August, 1989 while the proceedings described (auction of September 1997, suit No. 113 of 1999) indicate the ruling must be of 1999; the year appears to be a typographical error.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "INDUSTRIAL & COMMERCIAL DEVELOPMENT CORPORATION vs DABER ENTERPRISES LIMITED [1999] KECA 146 (KLR)", Case Analysis (1999). Civil Application No. NAI. 223 of 1999 (89/99UR). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1999/146/eng@1999-09-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.