Ashwyn Said Seif Al-Busaidy & 2 others v Josphat Kalanga Bukhala & 6 others
The bottom line
#A Mombasa court paused enforcement of a land judgment pending appeal, but only if the losing side deposits Kshs. 1.5 million and accounts for all rental income.
What this practically means
#Executive summary
#Key legal issues
#Whether stay of execution pending appeal was merited
Stay granted conditionally: substantial loss risk shown given the difficulty of restoring possession, but no security offered, so the Court prescribed its own structured security regime
The Court found promptness, accepted a risk of substantial loss in possession matters, but noted the notice of motion was silent on security. Exercising discretion under Order 42 Rule 6(2)(b), it prescribed a Kshs. 1,500,000 deposit plus full disclosure and preservation of rental income, citing proportionality, with automatic lapse on default.
Whether the Judgment could be set aside pending appeal within a stay application
Declined; stay and setting aside are distinct remedies that cannot coexist in one prayer
The Court held that stay suspends enforcement while setting aside reopens the decision, and a stay motion cannot be a disguised review by which the Court sits on appeal over its own judgment. An applicant may pursue appeal or review separately, not both in one application.
Whether the three business tenants should be joined post-judgment and the judgment set aside ex debito justitiae
Refused; no adverse order against them, their interests are derivative, and service on the premises' occupants was proved
The Judgment was entered only against the 1st to 6th Defendants and the claim against the 7th Defendant was expressly declined. The proposed parties' interests derive from tenancies with the unsuccessful Defendants, not from the Plaintiffs. Affidavits of service by a licensed process server were unrebutted by cross-examination, so notice was established and the motion dismissed.
Effect of pending appeal on a joinder/reopening application
The pending appeal points against reopening; the trial court may preserve the decree but not dismantle the judgment collaterally
With Court of Appeal Civil Appeal No. E087 of 2026 pending, allowing a parallel reopening application would create procedural untidiness and possible conflicting judicial movements around one decree. The Court may preserve the decree through stay but should not simultaneously reopen the merits.
Legal principles established
#- A stay application cannot be used as a vehicle to set aside or reopen a final judgment
- Post-judgment joinder is exceptional and requires an adverse order, an independent interest, absence of notice and necessity to avert a nullity
- Service is effective where documents are tendered and accepted even if the recipient refuses to sign the process server's copy
- Natural justice protects the opportunity to be heard, not endless reopening of concluded litigation
Court orders
#- 1.Stay of execution of the Judgment and decree dated 19th March 2026 pending the hearing and determination of the appeal, subject to conditions
- 2.The 1st to 6th Defendants/Applicants to deposit Kshs. 1,500,000 as security in an interest-earning joint account of counsel within 30 days
- 3.The 1st to 6th Defendants/Applicants to file and serve a complete schedule of every occupier, rents, charges, receipts and supporting documents within 30 days
- 4.All rents, licence fees, occupation charges and other income from the suit properties to be deposited in the joint interest-earning account within 7 days of receipt; accrued income deposited within 14 days
- 5.Failure to comply with any of orders (b), (c) or (d) causes the stay to lapse automatically
- 6.Prayer (d) of the motion dated 31st March 2026 seeking to set aside the Judgment pending appeal declined
- 7.The Notice of Motion dated 29th April 2026 dismissed in its entirety
- 8.Costs of the Notice of Motion dated 29th April 2026 awarded to the Plaintiffs/Respondents
- 9.Costs of the Notice of Motion dated 31st March 2026 to abide the outcome of the appeal
- Jurisdiction invoked
- Order 42 Rule 6 and Order 1 Rule 10(2) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ashwyn Said Seif Al-Busaidy & 2 others v Josphat Kalanga Bukhala & 6 others", Case Analysis (2026). ELC No. E022 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6308/eng@2026-10-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.