The Co-operative Bank Ltd v Kabaco(u) Ltd (Misc.App.No.73 OF 2003 ) (Misc.App.No. 73 of 2003)

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

Held that a stay of execution requires the applicant to prove good cause and special circumstances. Where the applicant merely asserted an intention to cross-appeal without supporting evidence, provided no proof that the cross-appeal was likely to succeed, and showed no special circumstances, the application must fail. Application dismissed with costs.

Outcome

Application for stay of execution dismissed

Facts

The respondent obtained judgment against the applicant bank (in liquidation) in H.C.C.S. No. 452 of 2001 for shs. 187,820,475 with interest and an order for return of securities. The respondent lodged an appeal on 12 June 2002 regarding the quantum of money awarded. When the applicant refused to release the securities, the respondent sought to enforce that order by applying to arrest the bank official holding the securities. The applicant then applied for a stay of execution of the decree and the order for return of securities, claiming it intended to cross-appeal. The applicant bank was in statutory liquidation.

Issues

1. Whether the applicant established good cause and special circumstances to justify a stay of execution of the decree and order for return of securities pending an intended cross-appeal.

Orders

• Application dismissed.
• Costs awarded to the respondent.

Rules and key headnotes

Legislation cited (3)

• Civil Procedure Rules Order 48 rule 1
• Civil Procedure Rules Order 48 rule 3
• Civil Procedure Act s.101

Cases cited (1)

• Somali Democratic Republic v A.S. Treon (Civil Application No. 11 of 1988)

The original judgment as reported. Read the original PDF before relying on any passage.