Petrazo Limited (Formerly Brighton Limited) & another v New Oshwal Distributor Limited & 4 others (Environment & Land Case E031 of 2022) [2025] KEELC 1120 (KLR)
The bottom line
#A Mombasa court paused collection of a Kshs. 42 million judgment, but only if the losing company deposits Kshs. 21 million in a joint escrow account within 30 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 Notice of Motion application dated 30th October, 2024 seeking to Stay of Execution of the judgement delivered on 8th October, 2024 pending the hearing and determination of the Appeal is merited?
- 2.Whether the parties herein were entitled to the reliefs sought.
- 3.Who will bear the Costs of Notice of Motion application dated 30th October, 2024.
Key legal issues
#Substantial loss
The Applicant proved it will suffer substantial loss if stay is not granted
Relying on Kenya Shell Ltd and Mukuma v Abuoga, the court found that the applicant demonstrated real risk that the decretal sum of Kshs. 42,000,000, if paid out, could not be recovered if the appeal succeeded. The respondent had not shown means to refund the decretal sum, so execution would render the intended appeal nugatory.
Undue delay
The application was filed without undue delay
Judgment was delivered on 8th October 2024, a Notice of Appeal was filed the same day, and the application was filed on 30th October 2024, about 22 days after judgment. The court assessed the application as timeous and expeditious, satisfying the second condition under Order 42 Rule 6(2).
Security for due performance
Stay granted conditionally on deposit of half the decretal sum (Kshs. 21,000,000) in a joint interest-earning escrow account
Although the applicant offered only Kshs. 1,000,000, the court held it is not bound by the type of security offered and must order appropriate security given that money depreciates. Guided by Aron C. Sharma and Gianfranco Manenthi, security is meant to guarantee due performance, not punish the judgment debtor, and the court fixed the quantum at half the decretal sum.
Costs
No orders as to costs despite costs following the event
Costs follow the event under Section 27(1) of the Civil Procedure Act and the successful party ordinarily gets costs. However, the court expressly reserved its discretion and declined to award costs on this application, ordering that each party bear its own costs.
Legal principles established
#- The three conditions for granting stay of execution pending appeal under Order 42 Rule 6(2) are conjunctive and must all be met
- The purpose of a stay of execution pending appeal is to preserve the subject matter of the dispute so the appeal, if successful, is not rendered nugatory
Court orders
#- 1.The Notice of Motion application dated 30th October, 2024 be and is hereby found to have merit and hence allowed subject to the fulfilment of the Pre-Conditions stated herein.
- 2.An order to stay the execution of the decree arising from the Judgment delivered on 8th October, 2024 pending the hearing and determination of the intended appeal in the Court of Appeal.
- 3.The 1st Defendant/Applicant to deposit Kshs. 21,000,000 as security in a Joint Escrow bank account in the names of Messrs. Taibjee & Bhalla Advocates LLP, S. Ruwa & Co. Advocates and Mutua-Waweru & Co Advocates within 30 days from delivery of the ruling pending the appeal.
- 4.Failure to comply with the security condition, the Notice of Motion shall automatically stand dismissed and execution of the Decree shall ensue procedurally as provided for by law.
- 5.There shall be no orders as to costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 1A, 1B, 3A, 38A and 51 of the Civil Procedure Act Cap. 21 and Order 42 Rule 6(2) of the Civil Procedure Rules 2010
Relief refused
#Applicant's offer to deposit Kshs. 1,000,000 as security (or allow Respondent to withhold rent for 2 years)
The court held security is for the court to determine, not the applicant, and ordered half the decretal sum instead
Costs
There shall be no orders as to 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.
That the Notice of Motion application dated 30th October, 2024 be and is hereby found to have merit and hence allowed subject to the fulfilment of the Pre – Conditions stated herein.
That this Honourable Court do hereby issue an order to stay the execution of its decree arising from the Judgment of this Honorable delivered on 8th October, 2024 pending the hearing and determination of the Intended appeal in the Court of Appeal.
That there shall be no orders as to costs.
the three (3) conditions for granting stay of execution pending appeal must be met simultaneously. They are conjunctive and not disjunctive.
Substantial loss is what has to be prevented by preserving the status quo because such loss would render the Appeal nugatory.
Issues in the judgment
#Paragraph 43 is internally incoherent - it states the applicant 'Has made no provisions for security in his application' immediately after reciting the mandatory security requirement, yet the applicant had offered Kshs. 1,000,000 and the court later found the security condition met
Paragraph 48 cites James Wangalwa & Another v Agnes Naliaka Cheseto as '(Supra)' but that case is not cited earlier in the judgment
The court's reasoning on the security condition is contradictory: it first finds the applicant adequately demonstrated substantial loss 'as stipulated by sub-rule 2b' (a security provision) while also acknowledging the applicant's nominal offer, before imposing its own security of half the decretal sum
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Petrazo Limited (Formerly Brighton Limited) & another v New Oshwal Distributor Limited & 4 others (Environment & Land Case E031 of 2022) [2025] KEELC 1120 (KLR)", Case Analysis (2025). Not stated in the judgment (Notice of Motion dated 30th October, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1120/eng@2025-03-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.