Chandaria Industries Limited v Mathew Agwingi [2001] KECA 265 (KLR)
The bottom line
#Kenya's Court of Appeal can pause execution of only part of a judgment, protecting the portion under a genuinely arguable appeal while the rest is paid.
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, in particular in respect of the awards under items (2) to (5) which were made on claims never pleaded in the plaint
- 2.Whether the award of Shs 500,000/- for pain and suffering was excessive or otherwise erroneous
- 3.Whether a stay of execution of the decree should be granted under rule 5(2)(b) pending the intended appeal and, if so, to what extent
Key legal issues
#Whether the awards under items (2) to (5) - artificial arm, vocational therapy, loss of future earning and domestic help - were made on claims never pleaded, rendering the intended appeal arguable
Yes. The claims were never included in the plaint, which was never amended, yet the learned Judge allowed evidence to be led on them. The Court held the applicant has an arguable appeal on this part of the award.
Counsel for the applicant submitted that special damages must both be pleaded and proved. Counsel for the respondent conceded that the plaint was never amended to include the claims for the artificial arm, vocational therapy, loss of future earning and domestic help, although the trial Judge allowed evidence in support of them. On that concession the Court concluded without hesitation that the intended appeal is arguable in respect of that portion of the award, which grounded the grant of a partial stay.
Whether the award of Shs 500,000/- for pain and suffering was excessive
No. The Court detected no error of principle in the award; given the loss of the respondent's right hand, the amount may well be sustained, so the intended appeal is not arguable on this item.
Counsel for the applicant attacked the award as excessive and way out of line with awards usually made under that item, but acknowledged that, taking into account the loss of the respondent's right hand, the amount may well be sustained. The Court agreed that no error of principle infected the award. Because a rule 5(2)(b) stay requires an arguable appeal, the absence of any arguable point on this item meant execution on it could proceed notwithstanding the pending appeal.
Whether a stay of execution should issue under rule 5(2)(b) and on what terms
A stay was granted but limited to the portion of the decree under arguable challenge (Shs 1,142,000/-, items 2-5); execution was allowed to proceed on the Shs 500,000/- awarded for pain and suffering.
The Court exercised its discretion under rule 5(2)(b) on a bifurcated basis: where the intended appeal was arguable (the unpleaded special damages), execution was stayed pending the hearing and determination of the appeal; where it was not (pain and suffering), the decree-holder could execute immediately. Costs of the application were made costs in the intended appeal. The ruling shows that a rule 5(2)(b) stay need not be all-or-nothing and may be tailored to the grounds on which the appeal is genuinely arguable.
Legal principles established
#- Where damages have been awarded on claims that were never pleaded, the plaint never having been amended to include them, an intended appeal against that portion of the award is arguable for purposes of rule 5(2)(b) and a stay of execution may issue in respect of it.
- A stay of execution under rule 5(2)(b) may be partial: it may be confined to the portion of the decree that is genuinely under arguable challenge, leaving the decree-holder free to execute on the balance.
- An appellate court will not interfere with an award of general damages where no error of principle is detected, even where the award is said to be out of line with comparable awards.
Court orders
#- 1.Stay of execution of the decree granted to the extent of Shs 1,142,000/- (items 2-5) only, pending the hearing and determination of the intended appeal
- 2.Execution of the decree to proceed in respect of the Shs 500,000/- awarded for pain and suffering
- 3.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
- H.C.C.C. No. 1871 of 1999
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (application for stay of execution pending an intended appeal)
Relief refused
#A stay of execution of the entire decree, specifically in respect of the Shs 500,000/- awarded for pain and suffering
The Court detected no error of principle in that award and therefore found no arguable appeal on that item, so execution on it was allowed to proceed
Costs
Costs of the application to be in the 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.
In the result, we allow this application and grant a stay of execution of the decree to the extent of Shs 1,142,000/- (items 2-5) only, pending the hearing and determination of the intended appeal.
But for Shs 500,000/- awarded for pain and suffering, execution may proceed.
Costs of the application to be in the intended appeal.
Counsel for the respondent conceded that the plaint was never amended to include these claims. In respect of this part of the award therefore, there can be no doubt that the applicant has an arguable appeal.
But we can detect no error of principle in respect of the sum of Shs 500,000/- awarded for pain and suffering.
The Judge found as a fact that the applicant knew that the machine in question was dangerous.
Issues in the judgment
#The judgment gives two different dates for the High Court judgment: the heading describes the judgment and decree as 'dated 5th November, 2000', while the body of the ruling states it was 'given on 5th October, 2000'.
The itemised awards do not reconcile with the stated total: items (2)-(5) (Shs 200,000 + Shs 100,000 + Shs 492,000 + Shs 150,000) sum to Shs 942,000, yet the total award is stated as Shs 1,642,000 and the stay was granted in the sum of Shs 1,142,000 (Shs 1,642,000 less Shs 500,000), leaving a Shs 200,000 discrepancy in the itemisation.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Lekakeny v Maito & 2 others (Environment and Land Case E009 of 2023) [2026] KEELC 4945 (KLR)[2026] KEELC 4945 (KLR)29 Jul 2026
Cite this brief
#Cite this brief
Caselaw, "Chandaria Industries Limited v Mathew Agwingi [2001] KECA 265 (KLR)", Case Analysis (2001). Civil Application No. Nai. 313 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/265/eng@2001-03-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.