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Court of AppealPartially AllowedCivil Application No. E109 of 2025 (as arising from Mombasa; application dated 11th June 2025)

Ibrahim & another v Muhsin & 2 others (Civil Application E044 of 2025) [2026] KECA 349 (KLR)

Court of Appeal of Kenya
27 February 2026
3,079 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The applicants, Nedim Mohamed Ibrahim and Sara Abdella Abdusemed, moved the Court of Appeal at Mombasa under Rule 5(2)(b) of the Court of Appeal Rules and Article 159 of the Constitution seeking a stay of proceedings and stay of execution of the decree in Mombasa HCCC No. 25 of 2015, by which the 1st Respondent had initiated a Notice to Show Cause for their arrest and committal to civil jail. The applicants' intended appeal challenges a High Court ruling of 23rd May 2025 refusing to declare the suit compromised and moot by virtue of a mediation agreement dated 7th May 2017, which had been upheld and ordered specifically performed in Mombasa HCCC No. E051 of 2021. The 1st Respondent opposed, maintaining that the 2019 decree remained valid, never having been set aside, vacated or stayed, and that the applicants had not met the Rule 5(2)(b) threshold or offered security. During the hearing the application against the 2nd and 3rd Respondents was withdrawn. Applying the settled two-limb test from Stanley Kangethe Kinyanjui v Tony Ketter and Trust Bank v Investech Bank, the Court found the intended appeal arguable, deferring its merits to the bench that will hear the appeal. On the nugatory limb, the Court held that arrest and committal to civil jail would irreparably deprive the applicants of their liberty, a harm not compensable in damages. Allowing the motion in terms of prayers 2 and 3, the Court granted a stay of execution and a stay of proceedings pending the intended appeal, with costs of the application to be costs in the intended appeal. The application is interlocutory; the Court did not disturb any decision below but preserved the status quo pending appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the intended appeal is arguable
  2. 2.Whether, unless stay of execution and stay of proceedings are granted, the intended appeal will be rendered nugatory

Key legal issues

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01

Whether the intended appeal challenging the High Court's refusal to declare the suit compromised by the mediation agreement is arguable

Holding

The Court found the intended appeal arguable without expressing any view on its ultimate merits, deferring to the bench that will hear the appeal.

Reasoning

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.

p. 6
02

Whether the intended appeal would be rendered nugatory if stay is not granted

Holding

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.

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 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. 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. 3.Costs of the application to be costs in the intended appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
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

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Application against the 2nd and 3rd Respondents

Withdrawn by the Applicants' counsel prior to the hearing, without objection

p. 3

Costs

Costs of the application shall be costs in the intended appeal.

Quotable passages

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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.
p. 6Final orders granting stay of execution and stay of proceedings
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.
p. 5Rule 5(2)(b) principles
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
p. 5Nature of Rule 5(2)(b) jurisdiction (adopting Trust Bank v Investech)
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.
p. 5Stay of proceedings - 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.
p. 6Nugatory aspect - irreparable deprivation of liberty

Issues in the judgment

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minor

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.

minor

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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.