https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/780

Alusa v Kerubo t/a Ogoti & Co. Advocates (Civil Case E006 of 2025) [2026] KEMC 780 (KLR) (27 August 2026) (Ruling) Neutral citation: [2026] KEMC 780 (KLR) Republic of Kenya In the Mombasa Law Courts Civil Case E006 of 2025 EM Mwamuye, SRM August 27, 2026 Between Judith Beatrice Alusa Plaintiff and Gladys Kerubo t/a Ogoti & Co. Advocates Defendant Ruling Introduction 1.Before the Court is the Defendant/Applicant’s Notice of Motion dated 30th April 2026. The application initially sought several orders, including leave for C.A. Odhiang & Company Advocates to come on record for the Defendant/Applicant after judgment and a stay of execution of the judgment delivered on 11th December 2025 pending the hearing and determination of the Applicant’s appeal. 2.The parties are agreed that the prayers relating to the change of advocates have already been dealt with and are spent. The substantive issue remaining for determination is prayer 5, namely whether there should be a stay of execution pending the hearing and determination of ELC Appeal No. E001 of 2026. 3.The application is supported by the affidavit of Gladys K. Ogoti sworn on 30th April 2026. It is opposed through the Replying Affidavit of Judith Beatrice Alusa sworn on 1st June 2026. Both parties thereafter filed written submissions. Background 4.The material placed before the Court shows that judgment was delivered on 11th December 2025 in favour of the Plaintiff/Respondent. The Defendant/Applicant was ordered to refund the Plaintiff KShs. 700,000, together with interest at court rates from the date of filing suit until payment in full and costs of the suit. The decree placed before the Court reflected interest of KShs. 86,761.90, bringing the amount reflected therein to KShs. 786,761.90, exclusive of any further accruing interest and costs. 5.Upon delivery of judgment, the Defendant/Applicant was granted a temporary stay of execution for 45 days. That fact is common ground between the parties. The Respondent states that the stay expired on or about 25th January 2026. 6.Being dissatisfied with the judgment, the Applicant lodged an appeal to the Environment and Land Court at Mombasa, being ELC Appeal No. E001 of 2026. The Memorandum of Appeal is dated 8th January 2026, and a Judiciary receipt dated 9th January 2026 confirms payment of the requisite appeal filing fees. 7.The record further shows that on 22nd January 2026, the Applicant requested typed and certified copies of the proceedings and judgment for purposes of preparing the appeal and paid the requisite charges. On 10th April 2026, the Applicant wrote again to the registry following up on the proceedings and judgment. 8.In the meantime, the Respondent moved to enforce the judgment. By a letter dated 25th February 2026, the Respondent’s advocates requested warrants of attachment against the Defendant/Applicant to be executed through Triapech Auctioneers. The application for execution similarly sought warrants of attachment and sale. It was against that background that the present application for stay was filed. Applicant’s Case 9.The Applicant contends that she has filed an arguable appeal and that unless stay is granted, execution will proceed and the appeal may be rendered nugatory. She asserts that substantial loss would arise if the decretal sum were paid to the Respondent and subsequently proved unrecoverable in the event the appeal succeeds. She has expressed willingness to comply with such conditions on security as the Court may impose. 10.In her submissions, the Applicant argues that the purpose of stay pending appeal is to preserve the subject matter of the dispute. She maintains that the Respondent did not demonstrate her ability to refund the decretal amount in the event the appeal succeeds. In that regard she relies upon National Industrial Credit Bank Limited v Aquinas Francis Wasike & Another [2006] eKLR and Tropical Commodities Limited International (in Liquidation) [2004] 2 EA. 11.The Applicant further submits that she is willing to abide by whatever orders the Court may make in respect of security and maintains that she has satisfied the requirements under Order 42 Rule 6 of the Civil Procedure Rules. 12.As regards delay, the Applicant points out that the appeal was lodged on 8th January 2026 and states that the present application was brought before execution of the decree had been completed. She therefore argues that there was no undue delay. Respondent’s Case 13.The Respondent opposes the application in its entirety. Her principal contention is that the Applicant enjoyed an initial 45-day stay which expired on or about 25th January 2026, yet the present application was not brought until 30th April 2026. She considers that period to constitute inordinate and unexplained delay. 14.The Respondent also disputes that substantial loss has been established. Her case is that the Applicant has merely stated that the decretal amount may not be recovered without laying a factual foundation for that apprehension. 15.The Respondent further argues that she has been pursuing recovery of her money since 2016, approximately ten years, and that having succeeded after a hearing on the merits, it would be prejudicial to deny her the fruits of her judgment for a further indefinite period. 16.In her written submissions, the Respondent states that she is a government-employed teacher with a constant income and considerable savings. 17.I pause at this point to observe that those particular assertions concerning the Respondent’s employment, savings and financial standing were made in submissions. They were not deponed to in the Replying Affidavit. Submissions are useful in presenting and analysing evidence and law, but they are not themselves evidence. I shall therefore determine the application on the evidentiary material placed before the Court through the affidavits and annexures. 18.The Respondent nevertheless states that should the Court be inclined to grant stay, the same should be conditional upon the Applicant depositing the entire decretal amount of KShs. 786,761.90 either in Court or in an interest-bearing account held jointly by the advocates for the parties pending determination of the appeal. Issue for Determination 19.Having considered the Motion, the affidavits, the annexures and the respective written submissions, the sole issue for determination is: Whether the Defendant/Applicant has made out a sufficient case for stay of execution pending appeal and, if so, upon what terms. Applicable Principles 20.Order 42 Rule 6(2) of the Civil Procedure Rules requires an applicant seeking stay pending appeal to satisfy the Court that:a.Substantial loss may result unless the order is made;b.The application has been made without unreasonable delay; andc.Such security as the Court orders for the due performance of the decree or order ultimately binding upon the applicant has been given. 21.In Butt v Rent Restriction Tribunal, the Court of Appeal emphasised that the power to grant or refuse stay is discretionary and that the discretion ought ordinarily to be exercised in a manner that prevents an appeal, if ultimately successful, from being rendered nugatory. At the same time, the Court recognised that appropriate terms, including security, may be imposed to protect the successful party. 22.In Kenya Shell Limited v Kibiru & Another, the Court equally emphasised that a successful litigant should not be deprived of the fruits of judgment without just cause and that substantial loss is the cornerstone of an application for stay. 23.Accordingly, a court dealing with an application of this nature must strike a balance between two legitimate interests: the right of an appellant to pursue an appeal in a manner that is not rendered illusory by premature execution, and the equally important right of a successful litigant to enjoy the fruits of a judgment regularly obtained. Whether There Was Unreasonable Delay 24.Judgment was delivered on 11th December 2025. The initial 45-day stay expired on or about 25th January 2026. The present application was filed on 30th April 2026. 25.There was therefore a period of approximately three months between the expiry of the initial stay and the filing of the present application. That period cannot simply be ignored. 26.The Respondent argues that there is no explanation whatsoever for that period. Viewed in isolation, the lapse of time would certainly count against the Applicant. 27.The Court must, however, consider the whole record. The documentary evidence shows that the Applicant lodged the appeal almost immediately following judgment. The Memorandum of Appeal is dated 8th January 2026, and the filing receipt is dated 9th January 2026. She also requested proceedings and judgment on 22nd January 2026 and followed up on 10th April 2026 when they had not been supplied. 28.Those steps demonstrate that the Applicant did not abandon or sleep on the appellate process. They do not entirely explain why a stay application was not brought immediately after 25th January 2026, since an application for stay was not necessarily dependent upon receipt of typed proceedings. Nevertheless, they constitute relevant intervening conduct demonstrating an active pursuit of the appeal. 29.I also take into account that although warrants of attachment had been sought from February 2026, the material before the Court does not demonstrate that the decretal sum had actually been recovered by the time the application was lodged. 30.In the circumstances, I find that there was delay, and that the application ought ideally to have been brought earlier. However, considering the prompt filing of the appeal, the requests for proceedings and the fact that the application was filed before execution had been completed, I am not persuaded that the delay, standing alone, should be treated as fatal to the application. Substantial Loss 31.The next and more substantial inquiry is whether the Applicant has demonstrated that she may suffer substantial loss if stay is refused. The decree is a money decree. The mere fact that execution will issue or that a judgment debtor will be required to pay money does not, without more, constitute substantial loss. That proposition is apparent from Kenya Shell Limited v Kibiru & Another, where the Court held that substantial loss must be demonstrated and cannot simply be inferred from the existence of a monetary decree. 32.The Applicant’s apprehension is that if the decretal amount is paid over to the Respondent and the appeal subsequently succeeds, she may be unable to recover the money. 33.The Respondent criticises that contention as a bare assertion and argues that the Applicant has not laid a sufficient factual foundation to shift the evidential burden to her. 34.There is force in that argument. The Supporting Affidavit does not set out specific facts concerning the Respondent’s means or identify particular circumstances demonstrating impecuniosity. It principally states that once the decretal amount is paid, it may not be recoverable. 35.Conversely, however, the Respondent’s Replying Affidavit does not contain evidence concerning her ability to make restitution of the decretal sum should the appeal succeed. Her specific assertions as to employment, constant income and considerable savings were introduced only in written submissions. As already observed, those submissions cannot take the place of affidavit evidence. 36.The Court is therefore faced with a money decree of KShs. 786,761.90 as reflected in the decree, a pending appeal challenging the judgment in its entirety, an assertion by the Applicant that repayment may be difficult, and no affidavit evidence from the Respondent specifically addressing her ability to refund the amount if required. 37.I am mindful that stay should not be granted merely because an appeal has been lodged. Equally, once execution of a substantial monetary decree occurs and the decretal sum passes beyond the reach of the Court, an eventual successful appeal may occasion practical prejudice to an appellant if restitution becomes difficult. 38.In my view, the circumstances do disclose a sufficient risk of substantial loss to warrant preservation of the decretal amount, provided the Respondent is simultaneously secured so that she is not left holding a mere paper judgment throughout the appellate process. Arguability and Merits of the Appeal 39.The parties devoted considerable portions of their submissions to whether the appeal is arguable. The Applicant submits that the appeal raises matters that ought to be ventilated before the appellate court. The Respondent, on the other hand, attacks the grounds of appeal as vague and particularly challenges the jurisdictional grounds because they were not raised before the trial court. 40.This Court must exercise caution not to convert an application for stay into a mini appeal. The appeal has been lodged and its Memorandum of Appeal is on record. It challenges, among other matters, the trial court’s jurisdiction, the alleged non-joinder of parties, limitation, the treatment of the evidence relating to payments and instructions, and the evaluation of the evidence generally. 41.Whether those grounds will ultimately succeed is a matter for the appellate court. At this stage, this Court should not pronounce itself upon their merits in a manner that would pre-empt or embarrass the hearing of the appeal. 42.For purposes of the present application, it is sufficient that there is an existing appeal challenging the decree sought to be executed. The decisive considerations before this Court remain those under Order 42 Rule 6(2), particularly substantial loss, delay and security. Security 43.Security is a mandatory and important consideration in an application for stay. The Applicant has expressly stated both in her affidavit and submissions that she is ready and willing to abide by such terms on security as the Court may impose. 44.The Respondent has proposed that, if stay is granted, the full decretal sum of KShs. 786,761.90 be deposited either in Court or in an interest-bearing joint account in the names of the parties’ advocates. I consider that proposal reasonable. 45.A deposit of the full decretal amount in a joint interest-bearing account achieves an appropriate balance. It preserves the fund pending appeal so that the Applicant does not face the risk associated with recovery should the appeal succeed, while at the same time securing the Respondent so that, should the appeal fail, the fruits of her judgment remain protected and readily available. 46.Such a condition is also consistent with the approach demonstrated in Butt v Rent Restriction Tribunal, where stay was granted upon terms requiring deposit of security. Disposition 47.In the result, I am satisfied that this is an appropriate case for the Court to exercise its discretion in favour of a conditional stay of execution. The application is therefore allowed on terms intended to safeguard the interests of both parties. Orders 48.Accordingly, I make the following orders:a.There shall be a stay of execution of the judgment and decree delivered on 11th December 2025 pending the hearing and final determination of ELC Appeal No. E001 of 2026.b.The stay is conditional upon the Defendant/Applicant depositing the sum of KShs. 786,761.90 in the Court within thirty (30) days from the date of this ruling.c.In default of compliance with order (b) within the stipulated thirty (30) days, the stay granted herein shall automatically lapse without the necessity of any further order of the Court, and the Plaintiff/Respondent shall be at liberty to proceed with execution.d.Prayers relating to the change of advocates having previously been granted are confirmed as spent.e.The costs of the application shall abide the outcome of the appeal.Orders accordingly. DELIVERED VIA MICROSOFT TEAMS AT MOMBASA THIS 27TH AUGUST 2026.………………………HON.E.M. MWAMUYESENIOR RESIDENT MAGISTRATE