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ELCPartially AllowedNot stated in the judgment

Soar v Ali (Environment & Land Case E001 of 2022) [2025] KEELC 1016 (KLR)

Environment and Land Court of Kenya
28 February 2025
4,831 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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The Mombasa Environment and Land Court paused execution of an eviction decree only because the property owner agreed to deposit Kshs. 1,371,200 as security within 30 days.

What this practically means

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Executive summary

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The Environment and Land Court at Mombasa (Hon. Mr. Justice L. L. Naikuni, J) delivered a ruling on 28th February, 2025 on a Notice of Motion dated 18th September, 2024 by Kuldip Singh Soar, the Defendant/Applicant, seeking a stay of execution of the court's decree arising from a judgment delivered on 16th July, 2024. That judgment had ordered the Applicant to vacate the suit premises (Subdivision Number 4961, Section I Mainland North), pay rental arrears of Kshs. 324,000 with interest, mesne profits of Kshs. 20,000 per month, and costs. The application, supported by an affidavit of Rukia Abdalla Ali, the Applicant's attorney, was premised on an intended appeal evidenced by a Notice of Appeal dated 22nd July, 2024, and the Applicant argued she would suffer substantial loss by eviction from a family property held for over 40 years. The Plaintiff/Respondent opposed, contending the Swahili House had been abandoned and secured by him with a padlock, that no substantial loss was demonstrated, and that he had ample means to compensate the Applicant if the appeal succeeded. The court framed three issues: merit of the stay application, entitlement to reliefs, and costs. Applying Order 42 Rule 6(2) of the Civil Procedure Rules and a line of Court of Appeal authorities, the court found substantial loss proved, but observed the application was filed about two months after judgment (while also stating elsewhere that it was brought without undue delay) and that no security had been offered. It allowed the application conditionally, ordering the Applicant to deposit Kshs. 1,371,200 in a joint escrow account of the parties' advocates within 30 days, failing which the application would automatically stand dismissed and execution would ensue. There were no orders as to costs.

Questions the Court framed

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

  1. 1.Whether the Notice of Motion application dated 18th September, 2024 seeking to stay execution of the decree of the court issued on 16th July, 2024 pending the hearing and determination of the Appeal is merited
  2. 2.Whether the parties herein were entitled to the reliefs sought
  3. 3.Who will bear the Costs of the Notice of Motion application dated 18th September, 2024

Key legal issues

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01

Substantial loss

Holding

The Applicant proved substantial loss would result if stay was not granted

Reasoning

Applying Kenya Shell Limited, the court accepted that the Applicant, facing eviction from a family property held for over 40 years, would suffer substantial loss if execution proceeded before the intended appeal was determined, and that the appeal could be rendered nugatory.

p. 7
02

Undue delay

Holding

The application was filed about two months after judgment, which the court found not to have been expeditious, yet elsewhere found no undue delay

Reasoning

The judgment contains an internal contradiction: in one paragraph it found the application filed with undue delay about two months after judgment, yet in the conclusion it stated the application was brought without undue delay. The stay was nonetheless granted subject to conditions.

p. 8
03

Security

Holding

Security is mandatory; the Applicant who made no provision for security in the application was ordered to deposit Kshs. 1,371,200

Reasoning

The court held that under Order 42 Rule 6(2)(b) furnishing of security is a mandatory condition, and that the court is not bound by the type of security offered by the applicant but may make orders serving the interests of justice, such as an interest-earning joint escrow account.

p. 8

Legal principles established

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  • The three conditions for granting stay of execution pending appeal under Order 42 Rule 6(2) are conjunctive and must all be met
  • The purpose of stay of execution is to preserve the subject matter so the appeal is not rendered nugatory
  • Security under Order 42 Rule 6 guarantees due performance of the decree, not punishment of the judgment debtor

Court orders

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  1. 1.The Notice of Motion application dated 18th September, 2024 is found to have merit and is allowed subject to fulfilment of the pre-conditions stated
  2. 2.An order of stay of execution of the decree arising from the Judgment delivered on 16th July, 2024 pending the hearing and determination of the intended appeal in the Court of Appeal
  3. 3.The Defendant/Applicant to deposit Kenya Shillings 1,371,200 as security for due performance of the decree in a joint escrow bank account of a reputable commercial bank held in the names of Messrs. Kasamani and Co. Advocates and Messrs. Idris Ahmed and Co. Advocates within 30 days
  4. 4.Failure to comply with the deposit condition, the Notice of Motion shall automatically stand dismissed and execution of the decree shall ensue procedurally
  5. 5.No orders as to costs

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Sections 1A, 1B, 3 and 3A of the Civil Procedure Act (Chapter 21, Laws of Kenya) and Order 42 Rule 6 of the Civil Procedure Rules, 2010

Relief refused

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Unconditional stay of execution

Stay granted only on condition that the Applicant furnishes security of Kshs. 1,371,200 within 30 days; failure means automatic dismissal of the application

p. 9

Costs of the application

Court reserved its discretion and made no order as to costs

p. 10

Costs

No orders as to costs - each party to bear own costs of the application.

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.

That this Honourable Court do hereby issue an order to stay the execution of its decree arising from the Judgment of this Honorable delivered on 16th July, 2024 pending the hearing and determination of the Intended appeal in the Court of Appeal.
p. 10Final orders - stay of execution
That an order be and is hereby made directing the Defendants/Applicants to deposit a sum of Kenya Shillings One Million, three Hundred and seventy-one, two hundred shillings (1,371, 200) as security deposit for the due performance of the decree
p. 10Final orders - security deposit
That failure to adhere with the condition under Clause (c) herein above of this Ruling the Notice of Motion application dated 18th September, 2024 shall automatically stand dismissed thereof and execution of the Decree shall ensue procedurally as provided for by law
p. 10Final orders - automatic dismissal on default
That there shall be no orders as to costs.
p. 10Final orders - costs
Substantial loss is what has to be prevented by preserving the status quo because such loss would render the Appeal nugatory.
p. 7Substantial loss
Substantial loss in its various forms is the cornerstone of both jurisdictions for granting stay.
p. 6Substantial loss

Issues in the judgment

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material

Internal contradiction on whether the application was brought with undue delay

minor

Internal contradiction on the date of the order to vacate the suit property

minor

Judgment refers to 'the 1st Defendant/Applicant' although the application is brought by a single Defendant

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, "Soar v Ali (Environment & Land Case E001 of 2022) [2025] KEELC 1016 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1016/eng@2025-02-28

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