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Court of AppealAllowedCivil Miscellaneous Application No. 316 of 2000

TAI JEAN GARMENTS COMPANY LIMITED,NARESH DARBAR & BHUPENDRA DARBAR vs VIYAY MORJARIA [2000] KECA 327 (KLR)

Court of Appeal
23 November 2000
280 words in judgment
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The bottom line

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Kenya's Court of Appeal paused collection of a Shs. 16 million judgment because the judge seemingly ignored Shs. 9 million the debtor had already repaid.

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 in Civil Miscellaneous Application No. 316 of 2000, delivered on 23 November 2000 by Kwach, Omolo and Shah, JJ.A. The applicants, Tai Jean Garments Company Limited, Naresh Darbar and Bhupendra Darbar, moved the Court under rule 5(2)(b) of the Court of Appeal Rules for a stay of execution of the judgment and decree of Rimita J. given on 4 October 2000, by which the High Court awarded the respondent, Viyay Morjaria, Shs. 16,000,000 as money lent. Counsel for the applicants, Mr. Oyatsi, drew the Court's attention to shortcomings in the judgment, principally the learned Judge's apparent failure to give the applicants credit for Shs. 8,979,040 which the respondent admitted he had been paid, even though the claim as pleaded was for Shs. 16,000,000. The Court held that the learned Judge had not explained why he disregarded that payment; that this was an arguable point which the applicants should be allowed to canvass in the intended appeal; and that, on the material before it, this was a proper case for an order of stay. The Court granted the application on condition that the applicants execute a bank guarantee for Shs. 7,000,000 within thirty days, failing which the application would stand dismissed with costs. Costs of the application were made costs in the intended appeal. The High Court judgment itself was not disturbed; the ruling preserves the position pending the appeal. No authorities were cited, and the ruling is a single judgment of the whole court.

Questions the Court framed

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

  1. 1.Whether the intended appeal is arguable, in particular whether the learned Judge erred in failing to give the applicants credit for Shs. 8,979,040/= which the respondent admitted he had been paid.
  2. 2.Whether, on the material before the Court, this is a proper case for an order of stay of execution of the judgment and decree of Rimita J. pending the intended appeal, and on what conditions.

Key legal issues

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01

Whether the intended appeal is arguable.

Holding

Yes. The apparent failure by the trial Judge to give the applicants credit for Shs. 8,979,040/= which the respondent admitted he had been paid, despite a pleaded claim for Shs. 16,000,000/=, is an arguable point which the applicants should be allowed to canvass in the appeal.

Reasoning

The respondent's claim as pleaded was for Shs. 16,000,000/=. Counsel for the applicants identified the learned Judge's apparent failure to give credit for Shs. 8,979,040/= which the respondent admitted he had been paid by the applicants. The Court observed that the learned Judge had not explained why he disregarded that payment. An unexplained disregard of an admitted payment goes to the substance and quantum of the decree and is therefore capable of forming a viable ground of appeal, satisfying the arguability threshold for a rule 5(2)(b) application.

p. 1
02

Whether it is a proper case for stay of execution of the High Court judgment pending the intended appeal, and on what terms.

Holding

Yes. The Court granted the application for stay on condition that the applicants execute a bank guarantee in the sum of Shs. 7,000,000/= within 30 days; in default the application stands dismissed with costs.

Reasoning

The Court was satisfied on the material before it that this was a proper case for an order of stay. Rather than requiring security for the full decretal sum of Shs. 16,000,000/=, it conditioned the stay on a bank guarantee of Shs. 7,000,000/= to be executed within thirty days, balancing the applicants' right to pursue their appeal against the respondent's interest in the decree. Default in furnishing the security would result in dismissal of the application with costs, and costs of the application were made costs in the intended appeal.

p. 1

Legal principles established

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  • An unexplained failure by the trial court to give a judgment debtor credit for a payment the decree holder admits he has received is an arguable point sufficient to sustain a rule 5(2)(b) application for stay pending appeal.
  • The Court of Appeal may grant a stay of execution conditional upon the applicant furnishing security by way of a bank guarantee within a fixed period, with the application standing dismissed with costs in default.

Court orders

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  1. 1.Application for stay of execution of the judgment and decree of Rimita J. given on 4th October 2000 granted.
  2. 2.Stay conditional upon the applicants executing a bank guarantee in the sum of Shs. 7,000,000/= within 30 days from 23rd November 2000.
  3. 3.In default of executing the bank guarantee, the application to stand dismissed with costs.
  4. 4.Costs of the application to be in the intended appeal.

The bench

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

majority
majority
majority
On appeal from
High Court
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (application for stay of execution pending 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.

Accordingly we grant the application and order that as a condition for the stay the applicants shall execute a bank guarantee in the sum of Shs. 7,000,000/= within 30 days from today.
p. 1Final orders - conditional stay of execution
In default the application to stand dismissed with costs.
p. 1Final orders - default clause on failure to furnish security
Costs of the application to be in the intended appeal.
p. 1Final orders - costs of the application
The learned Judge has not explained why he disregarded that payment. This is an arguable point which the applicants should be allowed to canvass in the appeal.
p. 1Arguability - unexplained disregard of an admitted payment

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, "TAI JEAN GARMENTS COMPANY LIMITED,NARESH DARBAR & BHUPENDRA DARBAR vs VIYAY MORJARIA [2000] KECA 327 (KLR)", Case Analysis (2000). Civil Miscellaneous Application No. 316 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/327/eng@2000-11-23

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