Karimi v Hussein & another (Civil Case E1651 of 2024) [2026] KEMC 784 (KLR)
The bottom line
#A Mombasa court corrected its own oversight to rule on a stay request, but refused to pause execution because the winning party proved she could pay if the appeal fails.
What this practically means
#Executive summary
#Key legal issues
#Review for error apparent on the face of the record
Review granted; the inadvertent failure to determine a canvassed application is an error apparent on the face of the record, and filing within two days is not unreasonable delay.
The ruling of 30th June 2026 recorded the parties' arguments on stay yet framed the sole issue as the assessment of costs, omitting any determination of the stay application. Since the application had been filed, served, responded to and canvassed, it called for a determination. The omission was inadvertent and apparent from the ruling itself; the application filed on 2nd July 2026 was made without unreasonable delay.
Substantial loss as the heart of a stay application
Substantial loss was not established; the Respondent's sworn assertion of financial capacity was unrebutted.
The Applicants' fear of non-recovery rested on an assumption that the Respondent lacked means. She swore she was a professional with assets in Kenya capable of refunding the decretal sum, and the Applicants led no controverting material. The size of the decretal amount alone does not establish substantial loss, which requires a real risk of prejudice or of rendering the appeal nugatory.
Cumulative nature of Order 42 Rule 6(2) requirements
The three requirements (substantial loss, no unreasonable delay, security) must all be satisfied and are considered together.
While the Applicants satisfied the delay limb and showed willingness to furnish security, security does not operate in isolation. The court held that willingness to deposit the decretal amount cannot cure failure to demonstrate substantial loss, which lies at the heart of a stay application.
Legal principles established
#- Where an application has been heard and the court inadvertently fails to pronounce itself upon it, that omission is an error apparent on the face of the record amenable to review under Order 45 Rule 1.
- The requirements for stay pending appeal under Order 42 Rule 6(2) are cumulative and willingness to furnish security cannot cure failure to demonstrate substantial loss.
- The court cannot proceed merely on an assumption that a decree-holder is impecunious; the burden lies on the stay applicant to controvert evidence of means.
- A court hearing a stay application should exercise restraint and not assess the merits of an appeal from its own judgment.
Court orders
#- 1.The Defendants/Applicants' Notice of Motion dated 2nd July 2026 is allowed to the limited extent that the ruling delivered on 30th June 2026 is reviewed to correct the omission to determine the Defendants' Notice of Motion dated 9th April 2026
- 2.Pursuant to that review, the Defendants/Applicants' Notice of Motion dated 9th April 2026 seeking stay of execution pending appeal is considered and determined
- 3.The prayer for stay of execution of the judgment and decree delivered on 12th March 2026 pending determination of the appeal is declined
- 4.The order made on 30th June 2026 that assessment of the Plaintiff's Party and Party Bill of Costs dated 13th March 2026 await the outcome of the appeal remains undisturbed
- 5.Each party shall bear its own costs of the application dated 2nd July 2026
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules (review of the court's own order)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Karimi v Hussein & another (Civil Case E1651 of 2024) [2026] KEMC 784 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/784/eng@2026-08-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.