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Court of AppealDismissedCivil Appeal (Application) E038 of 2025

Twaher Abdulkarim Mohamed v Mwathethe Adamson Kadenge

Court of Appeal
25 September 2026
996 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal refused to stop execution of a Ksh 3.5 million costs decree against an MCA, ruling public office is no shield from paying court-ordered debts.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Mombasa (Tuiyott, Laibuta and Ngenye-Macharia, JJA) on a notice of motion dated 8th May 2026 under rule 5(2)(b) of the Court of Appeal Rules, seeking stay of execution of a High Court ruling (Thande, J, 8th November 2024) in Malindi Election Petition No. 1 of 2014. The applicant, who lost the petition and was condemned to pay costs taxed at Ksh 3,526,503.30, chose to challenge the taxation by way of review rather than a reference. He sought stay of execution, including arrest warrants issued by the Deputy Registrar, and offered to deposit the decretal amount in court, arguing his appeal was arguable and that committal to civil jail would prevent him performing his functions as Member of County Assembly for Shella Ward. The court applied the settled twin tests: the intended appeal was held arguable, since the proposition that the right to file a reference does not arise until the taxing officer gives reasons is not frivolous. However, the nugatory limb failed: the decree was a money decree and no contention was made that the respondent could not repay it, and the court held that holding public office does not, by itself, shield a litigant from a decretal obligation. The respondent's objections to the propriety of the appeal were left to a future strike-out motion. The motion was dismissed with costs to the respondent.

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 the appeal will be rendered nugatory if stay of execution is not granted

Key legal issues

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01

Whether the intended appeal is arguable

Holding

Yes - the proposition that the right to file a reference does not arise until the taxing officer gives reasons for the items objected to is arguable.

Reasoning

The High Court had reasoned that failure by a taxing officer to give reasons is no justification for not filing a reference under paragraph 11(2) of the Advocates (Remuneration) Order. The Court of Appeal held that, while that may seem correct at first blush, the competing proposition - that a reference cannot be filed until reasons are given - is not frivolous and meets the low arguability threshold.

p. 2
02

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

Holding

No - the decree is a money decree, no contention was made that the respondent cannot repay, and public office does not shield the applicant from civil jail.

Reasoning

The court noted that for a money decree the ability of the decree-holder to repay is a central consideration; no case of the respondent being a man of straw was made. The applicant's plea that incarceration would imperil his constitutional office as an MCA and trigger a costly by-election was rejected: a party cannot rely solely on public position to avoid a decretal obligation.

p. 2
03

Respondent's objection to the propriety of the appeal (no leave under paragraph 11(3); notice of appeal not served)

Holding

Not determined at this stage; the demurrer must await a formal motion to strike out the appeal.

Reasoning

The respondent argued the appeal was improperly filed without leave under paragraph 11(3) of the Order and that the notice of appeal was not served. The court declined to strike out the appeal on the strength of those objections in a stay application, holding such challenges should be raised by a dedicated motion.

p. 2

Legal principles established

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  • Both the arguability and nugatory tests must be met for stay under rule 5(2)(b), and the threshold for arguability is low - a single arguable point suffices.
  • For a money decree, absence of contention that the decree-holder cannot repay makes it difficult to satisfy the nugatory limb.
  • Holding public office is not, by itself, a ground for stay of a money decree; public officers must meet the settled parameters like any other litigant.

Court orders

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  1. 1.The notice of motion dated 8th May 2026 seeking stay of execution is dismissed
  2. 2.Costs of the application awarded to the respondent

The bench

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

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
High Court
Malindi Election Petition No. 1 of 2014
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (application for stay of execution pending appeal)

Relief refused

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Stay of execution of the High Court ruling on taxation of costs, including stay of arrest and committal to civil jail, and deposit of the decretal amount in court

The decree is a money decree and the respondent's ability to repay was not challenged; holding public office does not shield a litigant from a decretal obligation

p. 2

Costs

Notice of motion dated 8th May 2026 dismissed with costs to the respondent

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 threshold for arguability is low, one single point which requires further consideration on merit is sufficient.
p. 2Arguability test under rule 5(2)(b)
A party cannot, solely, seek succor from a public position he/she holds to shield himself/herself from meeting a decretal obligation that has arisen.
p. 2Public office no shield from decretal obligations
That would be a central consideration for stay of a money decree, absent of which it is difficult for an applicant to surmount the nugatory limb
p. 2Nugatory limb for money decrees
Accordingly, we hereby dismiss the notice of motion dated 8th May 2026 with costs to the respondent.
p. 2Final orders - dismissal of the stay application

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, "Twaher Abdulkarim Mohamed v Mwathethe Adamson Kadenge", Case Analysis (2026). Civil Appeal (Application) E038 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1779/eng@2026-09-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.