Mohamed v Kadenge (Civil Appeal (Application) E038 of 2025) [2026] KECA 1779 (KLR) (25 September 2026) (Ruling) Neutral citation: [2026] KECA 1779 (KLR) REPUBLIC OF KENYA IN THE COURT OF APPEAL AT MOMBASA CIVIL APPEAL (APPLICATION) E038 OF 2025 F TUIYOTT, KI LAIBUTA & GW NGENYE-MACHARIA, JJA SEPTEMBER 25, 2026 BETWEEN TWAHER ABDULKARIM MOHAMED .............................................. APPLICANT AND MWATHETHE ADAMSON KADENGE ........................................... RESPONDENT (Being an application for stay of execution of the Ruling of the High Court (Thande, J) of 8th November 2024 in Malindi Election Petition No. 1 of 2014 pending the hearing and determination of this appeal) RULING 1. Election petitions can be costly. 2. Twaher Abdulkarim Mohamed (the applicant) lost Election Petition No. 1 of 2014 to Mwathethe Adamson Kadenge (the respondent) with the result that he was condemned to pay costs eventually taxed at Ksh 3,526,503.30. The applicant did not le a reference, choosing instead to challenge the costs by way of a review application before the High Court, whose Ruling is the subject of this appeal. He is now before us in a notice of motion dated 8th May 2026, premised upon rule 5(2)(b) of the Rules of this Court in which he substantially seeks stay of execution to recover the costs and prays to deposit the decretal amount in Court pending hearing and determination of this appeal. 3. In an adavit sworn on the date of the motion, the applicant depones that the Deputy Registrar of the trial Court has issued warrants of arrest against him in execution of the decree on costs. He is apprehensive that he will suer great prejudice if arrested and committed to civil jail. The applicant asserts that his appeal is arguable and weighty. Elaborating on the nugatory aspect, should stay not be granted, the applicant states that he will not be able to carry out his constitutional functions as a Member of County Assembly of Shella Ward if committed to incarceration. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1779/eng@2026-09-25 1
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4. On his part, the respondent depones that payment of costs has been outstanding for far too long, three years now, and that the applicant has evaded arrest by multiple law enforcement ocers who have been directed to eect his arrest. The respondent asserts that the application is an abuse of court process and a clear violation of the dignity of the “Judiciary” as a whole. 5. We have given regard to the motion, the reply to it and the rival submissions led by counsel for the parties as augmented by oral arguments at the plenary hearing made by learned counsel Mr Kiprono holding brief for Mr Mwanakina for the applicant and learned counsel Mr Mkomba representing the respondent. 6. The principles for grant of stay under rule 5(2)(b) are well settled and common cause. The intended appeal must be arguable, and the applicant must demonstrate that the appeal will be rendered nugatory if stay is not granted. Both tests must be met (see for example, Stanley Kangethe Kinyanjui V Tony Ketter & 5 others [2013] KECA 378 (KLR)). The threshold for arguability is low, one single point which requires further consideration on merit is sucient. 7. Although the respondent seeks to fault the propriety of the appeal on grounds that no leave was sought before it was led contrary to the provisions of paragraph11 (3) of the Advocates (Remuneration) Order (the Order) and also because the notice of appeal was supposedly not served on him, we are not moved to strike out the appeal, and that demurrer must await such a motion. 8. In the impugned ruling, the High Court had reasoned that the failure by a taxing ocer not to give reasons on the decision for taxation is not a justication not to challenge the taxation by way of a reference as required by paragraph 11(2) of the Order. Whilst at rst blush that may seem to be the position, we do not think that it is frivolous to put forward the proposition that the right to le a reference cannot arise until the reasons for the items objected to are given by the taxing ocer. That is an arguable point. 9. Regarding the second limb, it is submitted for the applicant that his arrest and commitment to civil jail will mean that he will have been punished for non-payment of costs regardless of the fact that there is an active and arguable appeal. Further, that the applicant occupies a sensitive constitutional oce which must be lled through an expensive election if incarcerated, inimical to public good. 10. The decree sought to be stayed is a money decree, yet it has not been contended that the respondent is a man of straw incapable of repaying it should he be called upon to. That would be a central consideration for stay of a money decree, absent of which it is dicult for an applicant to surmount the nugatory limb (see for example Rose Mbithe Ndetei vs. Mathew Kyalo Mbobu [2008] KECA 88 (KLR). 11. A core plea by the applicant is that, because he holds a public oce, there arises a public interest element not to imperil him with civil jail. We are not persuaded. A party cannot, solely, seek succor from a public position he/she holds to shield himself/herself from meeting a decretal obligation that has arisen. A public ocer, just like any other litigant, must establish a case for stay of a money decree within the settled parameters for grant of such order. We think and so hold that this has not been done in the matter before us. 12. Accordingly, we hereby dismiss the notice of motion dated 8th May 2026 with costs to the respondent. DATED AND DELIVERED AT MOMBASA THIS 25TH DAY OF SEPTEMBER 2026. F. TUIYOTT ………………………….………….. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1779/eng@2026-09-25 2
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JUDGE OF APPEAL DR. K. I. LAIBUTA, CArb. FCIArb. ………………………………….. JUDGE OF APPEAL F. W. NGENYE-MACHARIA ………………………………….. JUDGE OF APPEAL I certify that this is the true copy of the original Signed DEPUTY REGISTRAR. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1779/eng@2026-09-25 3
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