Omuse & 8 others v Sauti Savings & Credit Co-operative Society Limited & 9 others (Environment and Land Case E106 of 2021) [2025] KEELC 5936 (KLR)
The bottom line
#A Kenyan court refused to halt enforcement of a judgment worth over KShs. 81 million because no decree existed and ordered the disputed funds released to the plaintiffs.
What this practically means
#Executive summary
#Key legal issues
#Whether stay of execution pending appeal should be granted under Order 42 Rule 6
Stay refused; the conditions were not met because no decree was drawn and no execution process was underway
The court applied the three conditions in Order 42 Rule 6(2): substantial loss, absence of undue delay and security. It found no evidence of a decree drawn or of any execution process initiated by the plaintiffs, so the claimed substantial loss was merely presumed. The court held it would be restrained to grant stay where no decree has been drawn, and the applicant had not shown the need for the orders at that stage.
Whether the monies held in the two joint advocate accounts should be released to the plaintiffs
Release ordered; without a decree justifying stay there was no reason to stop the plaintiffs accessing the monies
Having declined stay, the court found the funds deposited pursuant to the consent of 14th June 2023 could not be retained as security against an execution that did not exist. The advocates' firms were released from the professional undertaking and directed to release the sums in the NCBA and DTB accounts, plus interest, to the plaintiffs' advocates for proportional distribution to the 1st to 9th plaintiffs.
Whether the court is functus officio on the issue of stay of execution having granted 30 days stay at judgment
The court entertained the stay application, accepting that functus officio applies to the merits of a final judgment, not post-judgment incidental applications
The plaintiffs argued the court lacked jurisdiction since the 30-day stay granted at judgment had lapsed. The 1st defendant countered that functus officio applies only to the merits of the final judgment and not to post-judgment incidental or consequential applications. The court proceeded to determine the application on its merits without expressly ruling on the functus officio point, implicitly rejecting the objection.
Legal principles established
#- Stay of execution pending appeal cannot be granted where no decree has been drawn and no execution process is shown to be underway
- Stay of execution preserves the substratum of the case so that a successful appeal is not rendered nugatory
Court orders
#- 1.The notice of motion dated 19th March, 2025 seeking stay of execution pending appeal is dismissed
- 2.The law firm of Wesonga Wamalwa & Kariuki Associates Advocates and the law firm of Abdulrahman, Saad and Associates Advocates are released from the professional undertaking contained in the Consent dated 14th June, 2023
- 3.The amount of KShs. 11,400,000/- plus interest accrued thereon held at NCBA Bank Account No. 6923890018 is released to the plaintiffs' advocates to distribute proportionally to the 1st to 9th plaintiffs
- 4.The amount of KShs. 28,500,000/- plus interest accrued thereon held at DTB Bank Account No. 0052100001 is released to the plaintiffs' advocates to distribute proportionally to the 1st to 9th plaintiffs
- 5.The plaintiffs are entitled to costs of the two applications
- Jurisdiction invoked
- Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Omuse & 8 others v Sauti Savings & Credit Co-operative Society Limited & 9 others (Environment and Land Case E106 of 2021) [2025] KEELC 5936 (KLR)", Case Analysis (2025). ELCC NO. E106 OF 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5936/eng@2025-08-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.