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ELCPartially AllowedNot stated in the ruling (Notice of Motion dated 26th November, 2024)

Odotte v Aggarwal t/a Farm & Transport Technical Services & 3 others (Land Case 172 of 2015) [2025] KEELC 4176 (KLR)

High Court of Kenya (court name not expressly stated in the ruling; delivered at Kisumu)
29 May 2025
1,217 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan court paused debt enforcement against two judgment debtors, but only because they must first deposit the full KES 2.34 million owed into a joint bank account.

What this practically means

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Executive summary

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This ruling determines a Notice of Motion dated 26th November 2024 by the 1st and 2nd Defendants seeking stay of execution of a judgment and decree dated 23rd February 2022, pending an intended appeal, under Section 63(e) of the Civil Procedure Act, Order 42 Rule 6 of the Civil Procedure Rules and Articles 50 and 159(2) of the Constitution. The Applicants, against whom a judgment was entered and whose application to set it aside was dismissed on 3rd October 2024, filed a Notice of Appeal and faced a Notice to Show Cause that could see them committed to civil jail for the decretal sum. The Plaintiff/Respondent opposed, arguing inordinate delay (the decree being some 34 months old), absence of the appeal proper, and failure to provide security, noting no execution had commenced on the taxed costs awarded in the October 2024 ruling. Justice E. Asati applied the established tests from the Rotich, Mukuma and Shell Kenya authorities, holding that the risk of loss of liberty constituted substantial loss, that the exhibited Notice of Appeal and Memorandum of Appeal demonstrated a pending appeal, and that the Applicants' undertaking to furnish security should be given effect. The court allowed the application conditionally: stay of execution was granted pending the appeal, conditional upon the Applicants depositing Kshs.2,344,567.98 in an interest-earning joint account of both counsels' names within 45 days, failing which the stay lapses. Costs of the application were awarded to the Respondent/Plaintiff.

Questions the Court framed

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

  1. 1.Whether the Applicants will suffer substantial loss if stay of execution is not granted
  2. 2.Whether the application was made without unreasonable delay
  3. 3.Whether the Applicants have offered security for the due performance of the decree
  4. 4.Whether the intended appeal would be rendered nugatory if stay is not granted

Key legal issues

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01

Whether substantial loss had been demonstrated

Holding

Yes - the Applicants faced committal to civil jail via a Notice to Show Cause, which constituted substantial loss justifying stay

Reasoning

The court adopted the Rotich and Mukuma formulations that substantial loss is the cornerstone of the Order 42 rule 6 jurisdiction. The Plaintiffs Notice to Show Cause against the Applicants, whose consequence would be committal to civil jail for the decretal sum of Kshs.2,344,567.98, established a real risk of loss of liberty pending the intended appeal, which the court sought to preserve.

p. 3
02

Whether the existence of an intended appeal was demonstrated

Holding

Yes - a Notice of Appeal dated 16/10/2024 and Memorandum of Appeal dated 25/11/2024 were exhibited, and a Notice of Appeal suffices to deem the appeal filed

Reasoning

The Applicants exhibited a Notice of Appeal and a Memorandum of Appeal. The court reasoned that under Order 42 an appeal is deemed filed once a Notice of Appeal is given under the Court of Appeal Rules, so the pending-appeal condition for stay was satisfied notwithstanding the Respondent's complaint that the appeal itself had not been exhibited.

p. 3
03

Whether security for due performance had been given

Holding

Stay granted conditionally on deposit of the decretal sum in a joint interest-earning account, satisfying the security requirement

Reasoning

The Respondent argued that failure to provide security defeated the application. The Applicants, in a further affidavit, undertook to provide security and abide by conditions. The court granted stay conditional upon deposit of the decretal sum of Kshs.2,344,567.98 in a joint interest-earning account within 45 days, failing which the stay lapses.

p. 3
04

Whether there was inordinate delay

Holding

The court did not find the delay fatal, allowing the application in the interest of justice to enable the Applicants to exercise their right of appeal

Reasoning

The Respondent argued the stay application was guilty of extreme and inordinate delay given the decree was approximately 34 months old. The court nonetheless exercised its discretion in favour of the Applicants, balancing the right of appeal and the interest of justice against the delay and imposing a conditional deposit as protection for the decree-holder.

p. 3

Legal principles established

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  • Substantial loss is assessed by the totality of consequences an Applicant would suffer if forced to pay the decretal sum
  • Where execution would render a proposed appeal nugatory, stay can properly be granted
  • An appeal to the Court of Appeal is deemed filed upon lodgement of a Notice of Appeal under that Court's rules

Court orders

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  1. 1.An order of stay of execution of the judgement granted pending hearing and determination of the appeal, on condition that the Applicant deposits the decretal sum of Kshs.2,344,567.98 (as shown in the Notice to Show Cause dated 22/11/2024) in an interest earning account in the joint names of Counsel for the Applicants and Counsel for the Respondent within 45 days
  2. 2.In default of the deposit, the stay of execution order shall lapse
  3. 3.Costs of the application to the Respondent/Plaintiff

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Section 63(e) of the Civil Procedure Act, Order 42 Rule 6 of the Civil Procedure Rules and Articles 50 and 159(2) of the Constitution of Kenya, 2010

Relief refused

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Unconditional stay of execution

Stay granted only on condition of a conditional deposit of the decretal sum; the Respondent had argued no security was being provided

p. 3

Costs

Costs of the application to the Respondent/Plaintiff.

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.

An order of stay of execution of the judgement herein is hereby granted pending hearing and determination of the appeal on condition that the Applicant deposits the decretal sum of Kshs.2,344,567.98 (as shown in the Notice to Show Cause dated 22/11/2024) in an interest earning account in the joint names of Counsel for the Applicants and Counsel for the Respondent within 45 days hereof . In default the stay of execution order hereby granted shall lapse.
p. 3Final orders - conditional stay of execution
Costs of the application to the Respondent/Plaintifi.
p. 3Costs of the application
In the circumstances and in the interest of justice and to enable the Applicants to exercise their right of appeal, the court hereby allows the application on the following terms
p. 3Discretion exercised in the interest of justice
if it is shown that execution would render a proposed appeal nugatory then a stay can properly be granted.
p. 2Nugatory appeal test for stay

Issues in the judgment

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minor

The court deciding the matter is not expressly named in the ruling; only the delivery location (Kisumu) and the judge's name appear

minor

The ruling inconsistently cites Order 42 Rule 6(2) as being of the 'Civil Procedure Rules 2010' and the 'Civil Procedure Rules 2021'

minor

The 2nd Defendant/Applicant is never individually named in the ruling

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, "Odotte v Aggarwal t/a Farm & Transport Technical Services & 3 others (Land Case 172 of 2015) [2025] KEELC 4176 (KLR)", Case Analysis (2025). Not stated in the ruling (Notice of Motion dated 26th November, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4176/eng@2025-05-29

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