Bamburi Cement has secured a stay against asset seizure after the High Court found its appeal raises genuine questions over disputed cement deliveries, GPS evidence, and contractual liability.
The High Court has stopped execution against Bamburi Cement, shielding its assets as a dispute over missing cement heads to appeal.
Justice Linus Kassan found genuine questions surrounding disputed deliveries, GPS evidence, and interpretation of a transport agreement.
The ruling temporarily freezes enforcement of a KSh4.45 million judgement against Bamburi Cement Limited.
However, the amount pursued through execution had already climbed to approximately KSh7.15 million.
The dispute traces back to a transport contract between Bamburi and Masai Kenya Limited.
Masai Kenya transported cement for Bamburi’s customers under the agreement signed between the companies.
The contested consignments allegedly involved China Communications Construction Company Limited at Kimuka, Kajiado.
They were transported between April and July 2018, according to the High Court record.
Missing Cement
The dispute intensified after Bamburi received information that 224.7 tonnes had allegedly not been delivered.
Bamburi launched investigations after discovering the apparent discrepancy involving the disputed consignments.
One crucial piece of evidence was GPS tracking data from truck KCD 012A.
Bamburi argued that the tracking records showed the truck never entered the customer’s premises.
It also maintained that the vehicle failed to follow the designated delivery routes.
The company consequently recovered KSh3,951,850.57 it had previously paid Masai Kenya.
Masai Kenya then sued Bamburi, eventually securing judgement in the subordinate court.
Principal Magistrate Hosea Ng’ang’a delivered the judgement on March 14, 2025.
He awarded Masai Kenya KSh4,446,775.22, together with interest and costs.
The trial court had also granted Bamburi a 30-day stay before execution could commence.
Bamburi challenged that decision, filing its memorandum of appeal on April 14, 2025.
Its appeal questions how the trial court evaluated GPS records and the delivery documents.
It also challenges the treatment of an alleged admission concerning incomplete delivery.
Bamburi further argues that the trial court mishandled the burden and standard of proof.
Evidence Clash
Masai Kenya relied on signed delivery notes as evidence that the consignments reached their intended destination.
It argued that Bamburi had failed to produce sufficient evidence displacing those documents.
Masai Kenya also attacked Bamburi’s reliance on GPS information without forensic examination of delivery notes.
The company maintained that the digital tracking information could not, by itself, defeat documentary evidence.
The High Court, however, was not persuaded that Bamburi’s appeal was frivolous.
Justice Kassan identified several issues deserving consideration when the substantive appeal is eventually heard.
Those issues include GPS evidence, delivery notes, contractual obligations and the applicable burden of proof.
The judge stressed that an arguable appeal does not mean the appellant will ultimately succeed.
Instead, it means the appeal raises bona fide questions requiring judicial consideration.
Auction Halted
The dispute became more urgent after Masai Kenya commenced execution through Betabase Auctioneers.
Bamburi’s movable assets were proclaimed, with some described as essential tools of its operations.
The execution documents placed the amount demanded at approximately KSh7.15 million.
That figure included the judgement amount, interest, costs, and other sums claimed during execution.
Bamburi argued that selling operational assets could disrupt its business before its appeal was determined.
Justice Kassan accepted that the circumstances presented a genuine risk of prejudice.
The judge noted that the matter had moved beyond a simple demand for payment.
The assets had already been proclaimed, creating a tangible possibility of their removal and sale.
“If such assets were sold”, the disruption might not be adequately remedied through repayment after an appeal.
The court therefore found sufficient grounds for preserving the status quo pending determination of the appeal.
Security Paid
The court had earlier ordered Bamburi to deposit half the decretal sum as security.
Bamburi subsequently deposited KSh2,223,388 in court on May 13, 2025.
Masai Kenya argued that the deposit was insufficient because execution documents reflected approximately KSh7.15 million.
Justice Kassan rejected that interpretation, finding Bamburi had complied with the earlier court order.
The judge noted that Bamburi had obtained an official court invoice for KSh2,223,388 before making payment.
The money will remain in court pending determination of the appeal or further orders.
Bamburi’s separate challenge to the execution process achieved less success.
The company invoked Section 94 of the Civil Procedure Act over execution before taxation of costs.
Justice Kassan held that provision concerns decrees issued by the High Court exercising original civil jurisdiction.
The judgement here originated from a subordinate court, making Bamburi’s reliance on Section 94 problematic.
The court similarly declined to nullify the decree over alleged non-compliance with Order 21 Rule 8.
Bamburi had not demonstrated prejudice sufficient to justify declaring the decree a nullity.
The procedural questions therefore remain separate from the substantive appeal.
The High Court ultimately stayed execution pending determination of Bamburi’s appeal.
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Masai Kenya and its auctioneers cannot attach, remove, or sell Bamburi’s proclaimed assets.
Existing warrants and proclamations will remain in abeyance during the stay.
Bamburi must prosecute its appeal expeditiously, while costs of the application will follow the appeal’s outcome.
The ruling therefore gives Bamburi breathing room but not victory in the underlying dispute.
Masai Kenya retains its judgement, while Bamburi retains its right to challenge how that judgement was reached.
For now, the High Court has chosen preservation over enforcement as the appeal moves forward.
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