Alusa v Kerubo t/a Ogoti & Co. Advocates (Civil Case E006 of 2025) [2026] KEMC 780 (KLR)
The bottom line
#A Mombasa court stopped enforcement of a KShs 786,761 judgment, but only because the losing party agreed to deposit the full amount in court within 30 days.
What this practically means
#Executive summary
#Key legal issues
#Unreasonable delay
Delay of about three months existed but was not fatal given prompt filing of appeal and pending execution
Judgment was delivered 11 December 2025; the initial 45-day stay expired around 25 January 2026, but the application was filed 30 April 2026. The court found the delay 'ought ideally' to have been avoided but considered the prompt lodging of the appeal on 8-9 January 2026, requests for proceedings, and the fact that execution had not been completed, concluding the delay alone should not doom the application.
Substantial loss
Sufficient risk of substantial loss disclosed where restitution might be difficult and no affidavit evidence on Respondent's ability to refund
The decree was monetary; mere execution does not equal substantial loss. The Applicant's apprehension of non-recovery was bare, but the Respondent's Replying Affidavit gave no evidence of ability to refund, her claims of income and savings being only in submissions. Balancing these, the court found sufficient risk warranting preservation of the decretal amount subject to security.
Security
Deposit of full decretal sum in Court within 30 days, failing which stay lapses automatically
Security is mandatory under Order 42 Rule 6(2). The Respondent proposed deposit of the full decretal sum in Court or a joint interest-bearing account; the court found the proposal reasonable as it preserved the fund pending appeal while protecting the Respondent's fruits of judgment should the appeal fail.
Arguability of the appeal
Court declined to delve into merits; existence of a lodged appeal challenging the decree sufficed
The court cautioned against converting a stay application into a mini appeal. The memorandum of appeal raised grounds including jurisdiction, non-joinder and limitation, but their merits were for the appellate court. For stay purposes, the existence of the appeal plus the Order 42 Rule 6(2) factors were decisive.
Legal principles established
#- Submissions are not evidence and cannot substitute for affidavit evidence
- A money decree alone does not constitute substantial loss for stay purposes
Court orders
#- 1.Stay of execution of the judgment and decree delivered on 11th December 2025 pending hearing and final determination of ELC Appeal No. E001 of 2026
- 2.Stay conditional on deposit of KShs. 786,761.90 in Court within 30 days
- 3.In default of deposit, stay lapses automatically and Plaintiff free to execute
- 4.Prayers on change of advocates confirmed as spent
- 5.Costs of the application to abide outcome of the appeal
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Alusa v Kerubo t/a Ogoti & Co. Advocates (Civil Case E006 of 2025) [2026] KEMC 780 (KLR)", Case Analysis (2026). Notice of Motion dated 30th April 2026 (ELC Case, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/780/eng@2026-08-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.