ISAAC AWUONDO v SURGIPHARM LIMITED & LIZA M. KIMBO (? 86 of 2003) [2007] KECA 43 (KLR)
The bottom line
#Kenya's Court of Appeal paused a Shs.8 million judgment, but only because the appellant promised to secure the money through a bank guarantee within thirty days.
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 appeals from the High Court ruling are arguable and not frivolous
- 2.Whether the appeals would be rendered nugatory if a stay of execution is not granted
Key legal issues
#Whether the intended appeals are arguable
The court assumed, without deciding, that the appeals were arguable and not frivolous, based on the grounds already lodged in Civil Appeals Nos. 104 of 2003 and 209 of 2003.
The applicant's counsel advanced three grounds attacking the High Court's entry of summary judgment: that triable issues existed, that the judge determined issues on conflicting affidavit evidence and materially altered documents, and that the finding of no defence was erroneous. The court did not need to evaluate these in depth, being prepared to assume arguability since the appeals were already lodged and the grounds would be canvassed at the full hearing.
Whether the appeal would be rendered nugatory absent a stay
Balancing the interests of the parties, the court granted a stay conditional on the applicant providing a bank guarantee of Shs.8,000,000 within thirty days, thereby securing the respondent's position while preserving the appeal.
The respondent's advocate had indicated that his client was not averse to the decretal amount being deposited in a jointly held account or to suitable security being offered. The court took this into account and, weighing the interests of each side, fashioned a conditional stay that protects the respondent through a bank guarantee while staying execution pending the intended appeal. Failure to provide the guarantee within thirty days would cause the stay application to lapse with costs.
Legal principles established
#- On a rule 5(2)(b) application, the court may grant a conditional stay of execution, requiring security for the decretal amount where the respondent does not object to the decretal amount being secured.
- The court may assume, without deciding, that an appeal is arguable where the grounds will be canvassed in appeals already lodged.
Court orders
#- 1.Stay of execution of the ruling in HCCC No. 1522 of 2001 granted on condition that the applicant provides a Bank Guarantee in the sum of Shs.8,000,000 within thirty (30) days
- 2.If the Bank Guarantee is not provided within the stated period, the application for stay stands dismissed with costs
- 3.If the Bank Guarantee is provided, stay of execution to remain until the hearing and determination of the intended appeal
- 4.Costs of the motion to be in the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi, Milimani Commercial Court
- H.C.C.C. No. 1522 of 2001
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Unconditional stay of execution
Stay granted only on condition of provision of a bank guarantee for the decretal sum, weighing the interests of both sides
Costs
Costs of the motion shall be in the appeal; if the Bank Guarantee is not provided within thirty days, the application for stay shall stand dismissed with costs
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.
Weighing the interest of each side, we grant an order of stay on condition that the applicant shall, within thirty (30) days of the date hereof provide a Bank Guarantee in the sum of Shs.8,000,000/=.
If that is not done within the stated period the application for stay shall stand dismissed with costs, but, if the Bank Guarantee is provided as aforesaid there shall be a stay of execution until the hearing and determination of the intended appeal.
The costs of the motion shall be in the appeal. Those are our orders.
We are prepared to assume without considering the issues therein that the appeals are arguable and not frivolous.
Issues in the judgment
#The plaint is stated to have been filed on 3rd October 2001 and the guarantee is dated 26th August 1997, yet the defence avers discharge from the guarantee on 28th August 1992, a date preceding the guarantee; the judgment does not resolve this discrepancy.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "ISAAC AWUONDO v SURGIPHARM LIMITED & LIZA M. KIMBO (? 86 of 2003) [2007] KECA 43 (KLR)", Case Analysis (2007). Civil Application Nai 86 of 2003 (UR. 49/03). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/43/eng@2007-05-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.