https://new.kenyalaw.org/akn/ke/judgment/scc/2026/136

Calleja v Kariuki (Commercial Case E1471 of 2025) [2026] SCC 136 (KLR) (3 July 2026) (Ruling) Neutral citation: [2026] SCC 136 (KLR) Republic of Kenya In the Small Claims Court at Mombasa Commercial Case E1471 of 2025 TN Mwangeka, RM July 3, 2026 Between Hugo Bernardo Baldasano Calleja Applicant and Victor Gatonye Kariuki Respondent Ruling 1.By Notice of Motion dated 28th May 2026 the applicant seeks stay of execution of the Judgment and Decree together with costs and interest at court rates from the date of filing, pending the hearing and final determination of the Appeal. The application is grounded on the fact that the judgment herein was delivered outside the 60day timeline thus the same is a nullity. SGA Guarding Kenya Limited v Manipal International Printing Press Limited [2025] КЕНС 13830 (KLR), by the Applicant to buttress this position. Additionally, the Applicant contends that the appeal raises arguable points of law and that the appeal would be rendered nugatory if stay is not granted and that the balance of convenience favors the Applicant as the Respondent has already vacated the Premises; the tenancy has terminated and he no longer has any subsisting interest in the property. He suffers no ongoing prejudice from a stay pending the determination of the Appeal. Finally, that the interest if justice dictate that this Court has an overriding duty under Sections 3A and 3B of the Civil Procedure Act to grant such orders as are necessary to prevent the ends of justice from being defeated. 2.The Application is opposed, the Respondent/Claimant filed a replying affidavit sworn on 15th June 2026. The Respondent deposed that the Application is misconceived, incompetent, bad in law and an abuse of the Court process and ought to be dismissed with costs. Further, that the Applicant has failed to satisfy the mandatory requirements for the grant of stay of execution as set out under Order 42 Rule 6 of the Civil Procedure Rules. That the Applicant’s allegation that the Judgment was delivered outside the statutory period is a matter for determination by the appellate court and does not automatically invalidate the Judgment or operate as a stay of execution and any delay in the proceedings was substantially occasioned by the Applicant himself. That on several occasions during the proceedings, the Applicant sought and was granted additional time by this Honourable Court to file documents and place further material before the Court, having sought and benefited from the said extensions of time, the Applicant cannot now rely on the resultant delay as a basis for challenging the Judgment or seeking to stay execution. 3.The Power of Court to stay execution of orders and decrees can be found under Rule 28 of the Small Claims Court Rules. The said rule provides as follows;28(1)Where the Court gives judgment or makes an order in favour of any party to the proceeding, the Court may, on the written request of the party against whom the decree or order is given, stay execution of such decree or order given on such terms as the Court may direct.(2)An application under subrule (1) may be made orally in court in the presence of all the parties to the proceeding.(3)The Court may stay execution of a decree or order on a request made pursuant to this rule only where—(a)the Court is satisfied that there are sufficient grounds to grant the request; or(b)the parties consent to the stay of execution as requested by the applicant.The remedy for grant of stay of execution is thus a discretionary one that ought to be issued judiciously. 4.In Ngetuny v Nyangeno (Small Claims Appeal E001 of 2026) [2026] KEHC 4319 (KLR) (31 March 2026) (Ruling), the court while considering a similar application held that where an appeal touches on the issue of jurisdiction, a fundamental and a crucial one, on which stay of proceedings hinge as in the instant case there is irresistible temptation to grant the order so prayed for by the Applicant. 5.Consequently, the Notice of Motion dated 28th May is allowed as follows;a)There shall be a stay of execution of the judgment and decree dated 30th April 2026 pending hearing and determination of the appeal.b)The stay is conditional upon the Applicant depositing the entire decretal sum of Kshs. 230,000/- in a joint interest-earning account in the names of the advocates for the parties within thirty (30) days from the date of this ruling, in default the stay shall automatically lapse and the Respondents are at liberty to execute.c)Costs of the application shall abide the outcome of the appeal. DATED SIGNED AND READ VIRTUALLY AT MOMBASA THE 3rd DAY OF JULY 2026HON. THERESA N. MWANGEKARESIDENT MAGISTRATE/ADJUDICATORIn the presence of;…Ms. Nanjali…Claimant/Respondent;…Mr. Gatuguta… for Respondent/ApplicantC/A Esther