Ibrahim & another v Muhsin & 2 others (Civil Application E044 of 2025) [2026] KECA 349 (KLR)
The bottom line
#Kenya's Court of Appeal paused a decree and court case so two judgment debtors cannot be jailed while their appeal over a settled mediation agreement is heard.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the intended appeal is arguable
- 2.Whether, unless stay of execution and stay of proceedings are granted, the intended appeal will be rendered nugatory
Key legal issues
#Whether the intended appeal challenging the High Court's refusal to declare the suit compromised by the mediation agreement is arguable
The Court found the intended appeal arguable without expressing any view on its ultimate merits, deferring to the bench that will hear the appeal.
The applicants contended that the learned Judge failed to uphold Article 159 of the Constitution and failed to find that the mediation agreement of 7th May 2017 settled the dispute, contrary to the High Court decision in HCCC No. E051 of 2021. The Court held that determining whether the appeal would succeed would pre-empt the bench seized of the appeal, and resting on the grounds raised, it found the appeal arguable.
Whether the intended appeal would be rendered nugatory if stay is not granted
The Court held the nugatory limb satisfied because execution by arrest and committal to civil jail would irreparably deprive the applicants of their liberty, which cannot be compensated by damages.
The 1st Respondent had issued a Notice to Show Cause seeking the applicants' arrest and committal to civil jail under the 2019 decree in Mombasa HCCC No. 25 of 2015. The Court accepted that if execution proceeded, the applicants would suffer irreparable deprivation of liberty incapable of compensation in damages, satisfying the second limb of the Rule 5(2)(b) test and meriting both stay of execution and stay of proceedings.
Legal principles established
#- To succeed on a Rule 5(2)(b) application an applicant must demonstrate, first, that the appeal or intended appeal is arguable, and second, that unless the orders sought are granted the appeal, if successful, will be rendered nugatory.
- Stay of proceedings is a discretionary power to be exercised sparingly, being a serious remedy grantable only in exceptional circumstances.
- Arrest and committal to civil jail deprives a judgment debtor of liberty, an harm that cannot be adequately compensated by damages, and thus supports the nugatory-prong of the Rule 5(2)(b) test.
Court orders
#- 1.Stay of execution of the decree in Mombasa HCCC No. 25 of 2015 pending the hearing and determination of the intended appeal (prayer 2 of the Notice of Motion dated 11th June 2025)
- 2.Stay of proceedings in Mombasa HCCC No. 25 of 2015 pending the hearing and determination of the intended appeal (prayer 3 of the Notice of Motion)
- 3.Costs of the application to be costs in the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Mombasa
- Mombasa HCCC No. 25 of 2015 (ruling of 23rd May 2025)
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, and Article 159 of the Constitution of Kenya, 2010
Relief refused
#Application against the 2nd and 3rd Respondents
Withdrawn by the Applicants' counsel prior to the hearing, without objection
Costs
Costs of the application shall be costs in the intended appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The Notice of motion dated 11th June 2025 is merited and is allowed in terms of prayers 2 and 3 thereof. Costs of the application shall be costs in the intended appeal. It is so ordered.
an applicant must demonstrate that the appeal or intended appeal is arguable; and that unless the orders sought are granted, the appeal, if successful, shall be rendered nugatory.
The jurisdiction of the Court under Rule 5(2)(b) is original and discretionary and it is trite law that to succeed an applicant has to show firstly that his appeal or intended appeal is arguable
granting of stay of proceedings is a discretionary power that should be exercised sparingly as it disrupts the normal court process, and is a serious remedy that should only be granted in exceptional circumstances.
the Applicants will sufier irreparably by being arrested and committed to civil jail, as they will be deprived of their liberty, which incarceration cannot be adequately compensated by damages.
Issues in the judgment
#The applicants contend the High Court has 'unravelled the settlement' and the ruling dismissed their application as functus officio, yet a prior High Court judgment (E051 of 2021) upheld the same mediation agreement; the judgment records this as conflicting decisions between courts without resolving it on the merits, deferring to the pending appeal.
The certification footer bears an unclear signature line; date of delivery (27th February 2026) post-dates the application (11th June 2025) but the certification does not state a date, which is a minor formatting irregularity.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ibrahim & another v Muhsin & 2 others (Civil Application E044 of 2025) [2026] KECA 349 (KLR)", Case Analysis (2026). Civil Application No. E109 of 2025 (as arising from Mombasa; application dated 11th June 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/349/eng@2026-02-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.