Yusuf Abdul v Sea Angel Service Station Limited [2020] eKLR Case Summary

Court
High Court of Kenya at Mombasa
Category
Civil
Judge(s)
P.J.O. Otieno
Judgment Date
October 16, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3

Case Brief: Yusuf Abdul v Sea Angel Service Station Limited [2020] eKLR


1. Case Information:
- Name of the Case: Yusuf Abdul v. Sea Angel Service Station Limited
- Case Number: Civil Appeal No. 108 of 2013
- Court: High Court of Kenya at Mombasa
- Date Delivered: October 16, 2020
- Category of Law: Civil
- Judge(s): P.J.O. Otieno
- Country: Kenya

2. Questions Presented:
The central legal issues include whether the appellant's request for a stay of execution of the decree for costs should be granted pending the determination of the appeal to the Court of Appeal, and whether the appellant has demonstrated substantial loss that would justify such a stay.

3. Facts of the Case:
The appellant, Yusuf Abdul, successfully appealed a lower court's decision on May 3, 2017, leading to the award of costs to him. The respondent, Sea Angel Service Station Limited, was dissatisfied with this ruling and subsequently filed an appeal to the Court of Appeal, designated as CACA No. 116 of 2019. While the appeal was pending, Abdul demanded payment of the awarded costs amounting to Kshs. 67,605, threatening execution proceedings if not paid within ten days. This prompted the respondent to file a Notice of Motion seeking a stay of execution pending the outcome of the appeal.

4. Procedural History:
The respondent's application for a stay of execution was filed on September 3, 2020. The application was supported by an affidavit outlining the grounds for the request, including the potential for the appeal to become nugatory if execution proceeded. The appellant opposed the application, arguing that it was filed after an undue delay and failed to demonstrate substantial loss. The court ultimately decided to hear the application orally rather than through written submissions.

5. Analysis:
- Rules: The court considered the principles governing the grant of stay under Order 42 Rule 6(2)(b), which requires that the applicant demonstrates substantial loss and offers security for the due performance of the decree.
- Case Law: The court referenced previous decisions, including *Kenya Shell Ltd v. Kabiru* [1986] KLR 410, which emphasized that substantial loss is a cornerstone for granting a stay. The court noted that in the cited cases, security was typically ordered to ensure the decree's performance.
- Application: The court found that the respondent failed to demonstrate substantial loss that would arise if the stay was not granted. The decree in question was for costs, which the court considered to be recoverable. The court concluded that there was no evidence showing that the respondent would be unable to refund the costs if the appeal succeeded, thus denying the request for a stay.

6. Conclusion:
The court dismissed the respondent's application for a stay of execution, emphasizing the lack of demonstrated substantial loss and the rarity of granting stays solely to prevent the payment of costs. The ruling reinforced the balance between the appellant's right to appeal and the respondent's right to enjoy the fruits of litigation.

7. Dissent:
There were no dissenting opinions noted in the case.

8. Summary:
The High Court of Kenya ruled against the respondent's application for a stay of execution of the costs awarded to the appellant, citing the absence of substantial loss and the nature of the decree as monetary. This case highlights the court's commitment to balancing the rights of both parties in civil litigation, particularly concerning the enforcement of costs awarded in prior judgments.

Document Summary

Below is the summary preview of this document.

  • Yusuf-Abdul-v-Sea-Angel-Service-Station-Limited-[2020]-eKLR-Case-Summary_2638_0.jpg

This is the end of the summary preview.

Related Documents

View all summaries