https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/784

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATES COURT AT MOMBASA** **MAGISTRATE COURT CIVIL** **MCCC NO. E1651 OF 2024** **RACHAEL WANGARI KARIMI............................................PLAINTIFF/RESPONDENT** **VERSUS** **DR. HASSAN ALI HUSSEIN.............................................1ST DEFENDANT/APPLICANT** **THE AGA KHAN HOSPITAL MOMBASA.......................2ND DEFENDANT/APPLICANT** **RULING** **Introduction** 1. Before this Court is the Defendants/Applicants' Notice of Motion dated 2nd July 2026, brought principally under sections 1A, 1B and 3A of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. 2. The application arises from the Court's ruling delivered on 30th June 2026. The Applicants contend that although their earlier Notice of Motion dated 9th April 2026, seeking stay of execution pending appeal, had been canvassed together with the issue concerning the Plaintiff's Party and Party Bill of Costs, the Court inadvertently omitted to determine the application for stay when delivering its ruling. 3. The Applicants consequently seek, inter alia, stay of execution of the judgment delivered on 12th March 2026, review and variation of the ruling delivered on 30th June 2026, and, upon such review, determination of their application dated 9th April 2026 for stay of execution pending appeal. **Background** 1. Judgment in this matter was delivered on 12th March 2026 in favour of the Plaintiff/Respondent. The Defendants were dissatisfied with that judgment and lodged an appeal before the High Court at Mombasa. 2. On 9th April 2026, the Defendants filed a Notice of Motion seeking stay of execution of the decree pending hearing and determination of their appeal. The application was supported by an affidavit sworn by Tracy Mammu Adoo, the Senior Legal Officer of Aga Khan Hospital, Mombasa and Aga Khan Hospital, Kisumu. 3. The Applicants contended that they had lodged a Memorandum of Appeal; that the intended appeal had good prospects of success; that they stood to suffer substantial loss if execution proceeded; and that the Respondent's financial capacity had not been disclosed, thereby raising apprehension as to whether the decretal amount could be recovered should the appeal ultimately succeed. 4. The Applicants nevertheless expressed their willingness to furnish security for the due performance of the decree, including depositing the decretal amount in an interest-earning account in the joint names of the parties' advocates. 5. The Plaintiff/Respondent opposed the application through her Replying Affidavit dated 10th April 2026. She maintained, among other things, that the mere filing of an appeal did not entitle the Applicants to stay; that the Applicants had failed to demonstrate substantial loss; and that she was financially capable of refunding the decretal sum should the appeal succeed. 6. In particular, the Respondent described herself as a professional lady working as a Coast Leader for a leading flour milling company in Kenya and stated that most of her assets were situated within Kenya. 7. Without prejudice to her opposition to the application, the Respondent proposed that should the Court be inclined to grant stay, Kshs.700,000/= be released to her and Kshs.1,000,000/= be deposited into a joint interest-earning account in the names of the advocates for the parties. 8. The parties appeared before the Court on 9th June 2026, whereupon their respective positions were presented and the matter became ripe for determination. The Ruling of 30th June 2026 1. On 30th June 2026, the Court delivered its ruling. The ruling expressly stated at paragraph 1 that the determination related to the Plaintiff's Bill of Costs dated 13th March 2026, which quantified her costs at Kshs.430,400/=. The Court recorded the Defendants' objection to the Bill of Costs and further noted the existence of the pending appeal. 2. Significantly, at paragraph 5 of the ruling, the Court expressly recorded the Respondent's position that the Defendants had not met the threshold for grant of stay pending appeal. The Court further recorded her contention that she was financially capable of settling the decretal sum should the appeal ultimately succeed. 3. However, at paragraph 7 of the ruling, the Court framed the issue falling for determination as whether or not it should proceed with the assessment of the Plaintiff's Bill of Costs. 4. The Court thereafter found that the outcome of the appeal would have a direct impact upon the Bill of Costs and consequently ordered that assessment of costs await the outcome of the appeal. No order as to costs was made. 5. No determination was made in respect of the Defendants' Notice of Motion dated 9th April 2026 seeking stay of execution pending appeal. The Present Application 1. It is that omission which precipitated the present application dated 2nd July 2026. The application is supported by the affidavit of Otiato Sandra Belinda, Advocate, who deposes that the Applicants' application for stay had been properly placed before Court, opposed by the Respondent and canvassed by the parties. 2. Counsel contends that the omission to determine that application was inadvertent and constitutes an error apparent on the face of the record within the meaning of Order 45 Rule 1 of the Civil Procedure Rules. 3. It is further contended that unless the omission is corrected, the Applicants remain exposed to execution notwithstanding that their application for stay was heard but remains undetermined. **Issues for Determination** 1. Having considered the application, the affidavits, the previous proceedings and the ruling delivered on 30th June 2026, I find that the following issues arise for determination: 2. Whether the Applicants have established a proper basis for review of the ruling delivered on 30th June 2026; 3. If so, what becomes of the Notice of Motion dated 9th April 2026 which was not determined in that ruling; 4. Whether the Applicants have satisfied the requirements for stay of execution pending appeal; and 5. Who should bear the costs of the present application. **Analysis and Determination** Whether the Ruling of 30th June 2026 Should Be Reviewed 1. Order 45 Rule 1 of the Civil Procedure Rules permits a court to review its decree or order where, inter alia, there is a mistake or error apparent on the face of the record, or for any other sufficient reason, provided the application is made without unreasonable delay. In the present matter, there is no need for an elaborate inquiry to establish what occurred. The ruling itself provides the answer. 2. The ruling expressly recorded the existence of the pending appeal and, more importantly, recorded the Respondent's contention that the Applicants had not met the threshold for stay pending appeal. It nevertheless proceeded to frame the sole issue for determination as whether the assessment of the Plaintiff's Bill of Costs should proceed. 3. The Court ultimately ordered that assessment of the Bill of Costs await the determination of the appeal, but made no finding and issued no order whatsoever upon the application for stay of execution. 4. The record before me demonstrates that the application dated 9th April 2026 was not merely mentioned in passing. It had been filed, served, responded to and canvassed. It therefore called for a determination one way or the other. 5. A judicial determination ought, as far as practicable, to resolve the issues properly placed before the Court. Where an application has been heard and the Court inadvertently fails to pronounce itself upon it, that omission leaves the parties uncertain as to their respective rights and obligations. In the circumstances of this case, I am satisfied that the omission was inadvertent. 6. More importantly, it is apparent from the ruling itself. The Court recorded the Respondent's arguments concerning the threshold for stay but ultimately omitted to determine whether that threshold had in fact been satisfied. That is an error apparent on the face of the record amenable to review under Order 45 Rule 1. 7. I also note that the impugned ruling was delivered on 30th June 2026 and the present application was filed on 2nd July 2026. A period of approximately two days cannot, by any measure, constitute unreasonable delay. I consequently find that the Applicants have satisfied the threshold for review. 8. The ruling delivered on 30th June 2026 shall therefore be reviewed, but only to the extent necessary to determine the Notice of Motion dated 9th April 2026 which was inadvertently left undetermined. The Application for Stay of Execution 1. Having found that the omission ought to be corrected, I now turn to the substantive Notice of Motion dated 9th April 2026. 2. The applicable principles are found in Order 42 Rule 6(2) of the Civil Procedure Rules. An applicant seeking stay of execution pending appeal is required to demonstrate: that substantial loss may result unless stay is granted; that the application has been made without unreasonable delay; and that such security as the Court orders for the due performance of the decree has been furnished. 3. These requirements are cumulative. Stay pending appeal is a discretionary relief intended to preserve the subject matter of the litigation and ensure that the appellate process is not rendered nugatory, while at the same time recognising that a successful litigant is ordinarily entitled to enjoy the fruits of his or her judgment. Delay 1. Judgment was delivered on 12th March 2026 and the application for stay was filed on 9th April 2026. In the circumstances, I do not consider the interval between judgment and the application to amount to unreasonable delay. The Applicants therefore satisfy this limb. Substantial Loss 1. The question of substantial loss is more problematic for the Applicants. Their principal apprehension is that if the decretal sum is paid to the Respondent and the appeal subsequently succeeds, they may encounter difficulty recovering the money. In support of that apprehension, the Applicants asserted that the Respondent had not disclosed her financial capacity and that it was therefore assumed that she was not a person of means. The Respondent answered that allegation directly. She stated on oath that she is a professional lady working as a Coast Leader for a leading flour milling company in Kenya, that most of her assets are situated in Kenya and that she is capable of refunding the decretal amount should the appeal succeed. Once that response was placed before the Court, the Applicants did not place before Court any material controverting it or demonstrating that the Respondent would be unable to refund the decretal amount. The Court cannot proceed merely upon an assumption that a decree-holder is impecunious. 2. Equally, the fact that the decretal amount is substantial does not, standing alone, establish substantial loss. What must be demonstrated is the real risk of a loss that would substantially prejudice the Applicants or render the appeal nugatory if execution were permitted to proceed. 3. On the material placed before this Court, the Applicants' apprehension concerning recovery of the decretal amount remains largely speculative. The Respondent has positively asserted her ability to refund the decretal sum. There is no material before me demonstrating that the assertion is false, improbable or otherwise unreliable. I therefore find that the Applicants have not established, on a balance of probabilities, that they are likely to suffer substantial loss if stay is declined. Security for Due Performance 1. The Applicants have indicated their willingness to provide security and, specifically, expressed willingness to deposit the decretal amount into an interest-earning account in the joint names of the advocates for the parties. That willingness is relevant and demonstrates an appreciation of the requirement for security. 2. The Respondent herself proposed an alternative arrangement under which Kshs.700,000/= would be released to her while Kshs.1,000,000/= would be deposited into a joint interest-earning account. However, security does not operate in isolation from the other requirements of Order 42 Rule 6(2). Willingness to furnish security cannot cure a failure to demonstrate substantial loss. The requirements under Order 42 Rule 6(2) must be considered together. Merits of the Intended Appeal 1. The Applicants have also contended that their appeal has good prospects of success. Their Memorandum of Appeal challenges, among other matters, the trial Court's findings on medical negligence and causation, informed consent, the alleged possibility that the Respondent's injury was attributable to an ingested staple pin rather than the procedure performed by the 1st Appellant, the assessment of damages and the burden of proof. Those are matters properly falling for determination by the appellate Court. 2. This Court must exercise considerable restraint against embarking upon an assessment of the merits of an appeal from its own judgment. Doing so would risk pre-empting matters reserved for the appellate Court. For purposes of the present application, the decisive consideration remains whether the statutory requirements for stay under Order 42 Rule 6 have been established. 3. I have found that substantial loss, which lies at the heart of an application for stay pending appeal, has not been demonstrated. Effect of the Earlier Order on the Bill of Costs 1. For completeness, the order made on 30th June 2026 concerning the Plaintiff's Bill of Costs remains undisturbed. In that ruling, the Court held that the outcome of the appeal would have a direct impact on the Bill of Costs and consequently directed that assessment of the Plaintiff's costs await determination of the appeal. 2. The present review is therefore limited to correcting the omission concerning the Notice of Motion dated 9th April 2026. There is no sufficient basis before me to interfere with the order staying assessment of the Bill of Costs pending the appeal. **Disposition** 1. In the end, the Court finds that the Applicants have established an error apparent on the face of the record in the ruling delivered on 30th June 2026, insofar as the Court inadvertently failed to determine their Notice of Motion dated 9th April 2026. The omission is accordingly corrected through review. 2. Upon considering the Notice of Motion dated 9th April 2026 on its merits, however, I find that the Applicants have failed to establish substantial loss as required under Order 42 Rule 6(2) of the Civil Procedure Rules. 3. Accordingly, I make the following orders: 4. The Defendants/Applicants' Notice of Motion dated 2nd July 2026 is allowed to the limited extent that the ruling delivered on 30th June 2026 is reviewed to correct the omission to determine the Defendants' Notice of Motion dated 9th April 2026. 5. Pursuant to that review, the Defendants/Applicants' Notice of Motion dated 9th April 2026 seeking stay of execution pending appeal is hereby considered and determined. 6. The prayer for stay of execution of the judgment and decree delivered on 12th March 2026 pending determination of the appeal is declined. 7. For avoidance of doubt, the order made on 30th June 2026 that assessment of the Plaintiff's Party and Party Bill of Costs dated 13th March 2026 await the outcome of the appeal remains undisturbed. 8. Given that the present review application became necessary as a consequence of an inadvertent omission by the Court rather than any fault attributable to either party, each party shall bear its own costs of the application dated 2nd July 2026. It is so ordered. **DELIVERED VIA MICROSOFT TEAMS AT MOMBASA THIS 27TH AUGUST 2026.** **………………………..** **HON.E.M. MWAMUYE** **SENIOR RESIDENT MAGISTRATE**