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Small ClaimsPartially AllowedNot stated in the judgment copy· [2026] SCC 136 (KLR)

Calleja v Kariuki (Commercial Case E1471 of 2025) [2026] SCC 136 (KLR)

Small Claims Court
3 July 2026
TMTheresa N. Mwangeka
757 words in judgment
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The bottom line

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A Mombasa Small Claims Court paused execution of its judgment pending appeal, but only after Kshs. 230,000 was deposited into a joint interest-earning account.

What this practically means

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Executive summary

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This Small Claims Court (Mombasa) ruling, delivered by Hon. Theresa N. Mwangeka, Resident Magistrate/Adjudicator, on 3rd July 2026, determined a Notice of Motion dated 28th May 2026 seeking stay of execution of the court's own judgment and decree dated 30th April 2026, with costs and interest at court rates, pending the hearing and determination of an intended appeal. The Applicant argued that the judgment was delivered outside the 60-day statutory timeline and was therefore a nullity, relying on SGA Guarding Kenya Limited v Manipal International Printing Press Limited; that the appeal raised arguable points of law; and that it would be rendered nugatory absent a stay, noting the Respondent had vacated the premises and the tenancy had terminated. The Respondent opposed, contending the application was misconceived and an abuse of process, that the Applicant had not met the Order 42 Rule 6 requirements, and that any delay was substantially occasioned by the Applicant's own applications for adjournments and extensions. The court grounded its jurisdiction in Rule 28 of the Small Claims Court Rules, characterising stay as a discretionary remedy to be exercised judiciously. Following Ngetuny v Nyangeno, it accepted that where an appeal touches on jurisdiction there is strong temptation to grant the stay. The application was allowed: execution of the judgment and decree was stayed pending the appeal, on condition that the Applicant deposits the decretal sum of Kshs. 230,000/- into a joint interest-earning account of the advocates within 30 days, failing which the stay lapses; costs of the application were made to abide the appeal.

Key legal issues

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01

Whether stay of execution pending appeal should issue under Rule 28 of the Small Claims Court Rules

Holding

The application was allowed; stay granted on condition that the decretal sum of Kshs. 230,000/- be deposited in a joint interest-earning account within 30 days

Reasoning

The court found power to grant stay in Rule 28 of the Small Claims Court Rules, described the remedy as discretionary to be issued judiciously, and, relying on Ngetuny v Nyangeno, held that where the appeal touches on jurisdiction (judgment allegedly delivered outside the 60-day timeline), the court should grant the stay sought. Security in the form of a deposit of the decretal sum was imposed to protect the decree-holder.

p. 2

Legal principles established

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  • Stay of execution under the Small Claims Court Rules is a discretionary remedy to be exercised judiciously
  • Where an appeal raises a jurisdictional issue, the court is strongly inclined to grant a stay

Court orders

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  1. 1.A stay of execution of the judgment and decree dated 30th April 2026 pending hearing and determination of the appeal
  2. 2.The stay is conditional upon the Applicant depositing the entire decretal sum of Kshs. 230,000/- in a joint interest-earning account in the names of the advocates for the parties within thirty (30) days, in default the stay lapses and the Respondent may execute
  3. 3.Costs of the application shall abide the outcome of the appeal

Authorities

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Legislation

  • Small Claims Court RulesRule 28(1),(2),(3)
  • Civil Procedure ActSections 3A and 3B
  • Civil Procedure RulesOrder 42 Rule 6

Cases cited (2)

  • SGA Guarding Kenya Limited v Manipal International Printing Press Limited
    [2025] KENS 13830 (KLR)
  • Ngetuny v Nyangeno (Small Claims Appeal E001 of 2026)
    [2026] KEHC 4319 (KLR) (31 March 2026) (Ruling)
Jurisdiction invoked
Rule 28 of the Small Claims Court 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, "Calleja v Kariuki (Commercial Case E1471 of 2025) [2026] SCC 136 (KLR)", Case Analysis (2026). Not stated in the judgment copy. Source: https://new.kenyalaw.org/akn/ke/judgment/scc/2026/136/eng@2026-07-03

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