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MagistrateAllowedNotice of Motion dated 30th April 2026 (ELC Case, Mombasa)· [2026] KEMC 780 (KLR)

Alusa v Kerubo t/a Ogoti & Co. Advocates (Civil Case E006 of 2025) [2026] KEMC 780 (KLR)

Magistrates' Court (Environment and Land jurisdiction)
27 August 2026
2,498 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~10 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This ruling by Senior Resident Magistrate E.M. Mwamuye at Mombasa determined the Defendant/Applicant's Notice of Motion dated 30 April 2026 seeking stay of execution of a judgment delivered on 11 December 2025, by which she was ordered to refund KShs. 700,000 with interest and costs (decretal total KShs. 786,761.90), pending her appeal, ELC Appeal No. E001 of 2026. The Plaintiff/Respondent opposed, citing an unexplained three-month delay after the expiry of an initial 45-day stay, and contending that substantial loss was a bare assertion. The court identified the sole issue as whether a sufficient case for stay had been made and on what terms. It applied Order 42 Rule 6(2) of the Civil Procedure Rules and the principles in Butt v Rent Restriction Tribunal and Kenya Shell Limited v Kibiru. On delay, the court found delay existed but was not fatal, given the prompt lodging of the appeal, requests for proceedings, and that execution had not been completed. On substantial loss, while a money decree alone does not constitute substantial loss, the absence of affidavit evidence from the Respondent on her ability to refund, combined with the pending appeal, disclosed sufficient risk to warrant preservation of the fund. The court declined to assess the arguability of the appeal, cautioning against turning a stay application into a mini appeal. The application was allowed conditionally: stay of execution pending appeal, conditional upon deposit of KShs. 786,761.90 in Court within 30 days, failing which the stay lapses automatically; change-of-advocate prayers confirmed as spent; costs to abide the appeal.

Key legal issues

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01

Unreasonable delay

Holding

Delay of about three months existed but was not fatal given prompt filing of appeal and pending execution

Reasoning

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.

p. 4
02

Substantial loss

Holding

Sufficient risk of substantial loss disclosed where restitution might be difficult and no affidavit evidence on Respondent's ability to refund

Reasoning

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.

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Security

Holding

Deposit of full decretal sum in Court within 30 days, failing which stay lapses automatically

Reasoning

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.

p. 5
04

Arguability of the appeal

Holding

Court declined to delve into merits; existence of a lodged appeal challenging the decree sufficed

Reasoning

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.

p. 5

Legal principles established

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  • Submissions are not evidence and cannot substitute for affidavit evidence
  • A money decree alone does not constitute substantial loss for stay purposes

Court orders

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  1. 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. 2.Stay conditional on deposit of KShs. 786,761.90 in Court within 30 days
  3. 3.In default of deposit, stay lapses automatically and Plaintiff free to execute
  4. 4.Prayers on change of advocates confirmed as spent
  5. 5.Costs of the application to abide outcome of the appeal
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules

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, "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.