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Case Brief · caselaw.co.ke
High CourtDismissedNotice of Motion dated 5th March 2020 (Kadhi's Misc. Application No. 8 of 2016, Nairobi, underlying)

Hassan Rajab Ali v [Respondent]

High Court of Kenya
17 December 2020
760 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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To pause a court order, you must prove you will suffer significant financial loss and that your appeal is strong enough to matter.

What this practically means

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Executive summary

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Hassan Rajab Ali moved the High Court by Notice of Motion dated 5th March 2020 seeking, among seven orders, a stay of execution of the decree in Kadhi's Misc. Application No. 8 of 2016 delivered on 8th January 2020 and of rulings made on 12th and 26th February 2020 by Hon. T. W. Karanja, Resident Kadhi, pending an intended appeal; lifting of travel restriction orders issued against him on 26th February 2020; and adoption of a payment structure set out in his affidavit. Counsel for the Applicant argued at a virtual hearing that preventing the Applicant from travelling was not in the child's best interest since he needed to return to work to provide for the child, and asked the court to adopt the payment structure on record. The court, S. N. Mutuku J, restated the settled parameters for stay of execution: substantial loss, an arguable appeal that would be rendered nugatory if stay is refused, and an application brought without unreasonable delay with sufficient cause. The court found the Applicant had not demonstrated substantial loss, having provided no evidence of where he works or how the travel restriction would cause such loss, and held that the travel-ban and payment-structure issues were better argued during the appeal, as dealing with them at the interlocutory stage would prejudice the Respondent and the best interest of the child. The application was dismissed with no order as to costs, with liberty to pursue the intended appeal.

Key legal issues

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01

Requirements for stay of execution pending appeal

Holding

Applicant failed to meet the parameters for stay; application dismissed

Reasoning

The court restated the three parameters for stay: substantial loss, an arguable appeal that would be rendered nugatory, and absence of unreasonable delay with sufficient cause. The Applicant provided no evidence of employment or how the travel restriction caused substantial loss, and the payment-structure and travel-ban issues were better canvassed on appeal.

p. 2
02

Best interest of the child

Holding

Granting the travel-ban and payment-structure orders would be prejudicial to the child's best interest

Reasoning

The court weighed the child's best interest against the Applicant's claim that he needed to travel to earn a living for the child. It found that lifting the travel ban and altering the payment structure at the interlocutory stage would prejudice the Respondent and the child, and deferred these matters to the appeal.

p. 2

Legal principles established

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  • To obtain stay of execution, an applicant must demonstrate substantial loss, an arguable appeal not rendered nugatory, and that the application was brought without unreasonable delay with sufficient cause

Court orders

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  1. 1.Application dismissed
  2. 2.No order as to costs
  3. 3.Applicant at liberty to pursue the intended appeal
On appeal from
Kadhi's Court, Nairobi
Kadhi's Misc. Application No. 8 of 2016
Jurisdiction invoked
Appellate/supervisory jurisdiction over Kadhi's Court orders (intended appeal from Kadhi's Court)

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, "Hassan Rajab Ali v [Respondent]", Case Analysis (2020). Notice of Motion dated 5th March 2020 (Kadhi's Misc. Application No. 8 of 2016, Nairobi, underlying). Source: 

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