Hik v Asm

2. Following that judgment, the applicant herein Husna Idris Kassim filed an application through a notice of motion dated 17th June 2025 and brought under section 80 of the Civil Procedure Act (Cap. 21) Laws of Kenya and Order 45 Rule 1 of the Civil Procedure Rules, seeking for orders that: a. The judgment and all consequential orders issued by this Honourable Court in this matter be reviewed, varied, and/or entirely set aside. b. The proceedings be reopened for admission of new and compelling evidence, which was not available or placed before the court due to omission by previous Counsel, and which fundamentally affects the outcome of the case. c. The matter be heard afresh on merit, with all relevant and material evidence now available and annexed herein. d. Costs of this application be provided for. 3. In a ruling dated 29th September 2025, the Kadhi’s Court dismissed the ruling on grounds that it had no merit as it did not meet the threshold for review. 4. The appellant/applicant herein was dissatisfied with that ruling and on 8th October 2025 filed a memorandum of appeal dated 1st October 2025 seeking that the appeal be allowed and the entire ruling be set aside on grounds that: 5. a. The learned Kadhi erred in law and in fact in finding that the application dated 17th June 2025 did not meet the threshold for review; b. The learned Kadhi erred in law and in fact in failing to determine that there was an error on the face of the record; c. The learned Kadhi erred in law and in fact in failing to critically analyze the appellant’s submissions in the matter; and d. The learned Kadhi erred in law and in fact by failing to appreciate that there was new and compelling evidence that emerged. At the same time, the appellant filed the present application under by way notice of motion dated 28th September 2025. She sought the following orders which I hereby reproduce in their entirety for purposes of clarity: a. This matter be certified urgent as urgent and be heard ex-parte in the first instance and service thereof be dispensed with; b. Pending inter partes hearing of the instant application, interim orders do issue ex-parte in the first instance in terms of prayers 3-4 hereunder: c. There be immediate, unconditional stay of execution of: # the judgment delivered and orders given on 22/04/2025; # the ruling delivered and orders given on 29th September 2025; # the entirety of proceedings herein, alternate to this motion; # any/all orders and/or process consequential thereto. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4526/eng@2026-02-12 2

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6. d. Alternatively, and without prejudice to prayer 3 above, the court orders that status quo pertaining herein as at the date of filing hereof be maintained until the first inter partes hearing of this application, and/or as the trial court shall direct. e. The orders subject of prayers 3 - 5 above do persist until the hearing and determination of the instant application. f. The orders subject of prayers 3 - 5 above do persist until the hearing and determination of the appeal subject hereof. g. Costs of this application be provided for. The grounds in support of the application are that: a. There is a grave, profound miscarriage of justice and/or error on the face of the record manifested through the Ruling delivered on 29th September 2025 and judgement dated 22nd April 2025; b. The applicant is apprehensive that the respondent will embark and/or is scheduled to embark on the execution of the impugned decree subject hereof; c. Summarily, the applicant faults the said ruling on the following grounds; Grounds Memorandum of Appeal: # That Learned Kadhi erred in law and in fact in finding that the Application dated 17th June 2025 did not meet the threshold for review; # That the Learned Kadhi erred in law and in fact in failing to determine that there was an error on the face of the record; # That the Learned Kadhi erred in law and in fact in failing to critically analyze the Appellants Submissions in the matter; # That the learned Kadhi erred in law and in fact by failing to appreciate that there was new and compelling evidence that emerged. d. The applicant is apprehensive that if the respondent is not stopped from executing the impugned decree, the intended appeal as well as this application will be defeated; e. The appeal will be rendered nugatory if the orders sought herein are not granted; and f. The applicant is bound to suffer irreparable loss and damage if this application is not heard on priority basis and orders sought granted as prayed. 7. This court did not certify the application as urgent nor issue the interim orders. It directed that the application be served for inter partes hearing on written submissions. 8. There was no response from the respondent. I have seen an affidavit of service sworn by Corinne Mumbi Kimani, advocate on 28th October 2025 deposing that on 14th October 2025 she served the Memorandum of Appeal dated 1st October 2025, the application dated 29th September 2025 and the court orders, upon the respondent through the e-mail address xxxx.com. She also subsequently served the submissions by the appellant/applicant through the same address. 9. The applicant filed her submissions dated 24th October 2025. 10. I have considered the notice of motion, the grounds in support thereof, the supporting affidavit and the submissions by learned counsel as well as the authorities cited. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4526/eng@2026-02-12 3

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11. The affidavit supporting the application is the same one filed in the Kadhi’s Court at Kwale, Matrimonial Cause No. KCMAT/E001/2024 ASM v HIK. It was sworn on 17th June 2025 by HIK to suport the application that gave rise to the present appeal and application. It was simply appended to this application. It is apparent that the person who filed the documents made an error. It follows that the application herein was filed without a supporting affidavit. 12. Nonetheless, it appears that learned counsel for the applicant discovered that error as there was an attempt to file another supporting affidavit sworn by HIK. I say attempt because the document which bears the title of “Supporting Affidavit” in the name of HIK as the deponent is clearly incomplete. It is one page filed in court on 28th October 2025 and ends at paragraph 4 sub-paragraph (c). I have looked at that document alongside the grounds in support of the application and I notice that the drafter of what were supposed to be the depositions therein was actually replicating the grounds in support of the application as set out above. Unfortunately, that exercise appears to have been abandoned midway. The document has no ending; it has no jurat and obviously it was not commissioned. In short, it is a document that cannot pass for a supporting affidavit. 13. Assuming that the document had been complete as a supporting affidavit, it would not be of use to the application because there was no leave sought by the applicant to file a supplementary affidavit that would have taken the place of the earlier one filed together with the application. The consequence of which is that the application filed herein has no supporting affidavit. 14. Order 51 Rule 4 of the CPR provides that every notice of motion shall state in general terms the grounds of the application, and where any motion is grounded on evidence by affidavit, a copy of any affidavit intended to be used shall be served. In the present application the applicant stated the grounds in support thereof and added that it was supported by the affidavit of Husna Idris Kassim. In the absence of a supporting affidavit, this court is only left to consider the grounds supporting the application to see whether they meet the threshold for grant of an order of stay pending appeal or for maintenance of status quo. 15. As submitted by learned counsel for the applicant, stay of execution pending appeal to the High Court is provided for under Order 42 Rule 6 of the Civil Procedure Rules 2010 as follows; “ (1) No appeal or second appeal shall operate as a stay of execution or proceeding under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside. (2) No order for stay of execution shall be made under subrule (1) unless – a. the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4526/eng@2026-02-12 4

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b. 16. 17. such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.” From the foregoing provision of the law, the three conditions to be fulfilled for an order of stay pending appeal to issue are; a. that substantial loss may result to the applicant unless the order is granted. b. the application has been made without unreasonable delay. c. security as the court orders for the due performance of the decree. These principles are enunciated in the case of Butt v Rent Restriction Tribunal [1979] KECA 22 (KLR) where the Court of Appeal stated what ought to be considered in determining whether to grant or refuse stay of execution pending appeal. The court said that: a. The power of the court to grant or refuse an application for a stay of execution is discretionary; and the discretion should be exercised in such a way as not to prevent an appeal. b. Secondly, the general principle in granting or refusing a stay is, if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should the appeal court reverse the judge’s discretion. c. Thirdly, a judge should not refuse a stay if there are good grounds for granting it merely because, in his opinion, a better remedy may become available to the applicant at the end of the proceedings. d. Finally, the Court in exercising its discretion whether to grant or refuse an application for stay will consider the special circumstances and its unique requirements. The court in exercising its powers under Order XLI Rule 4(2) (b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security as ordered will cause the order for stay of execution to lapse. 18. The High Court’s jurisdiction to grant a stay of execution pending appeal under Order 42 rule 6 of the Civil Procedure Rules is circumscribed by the three conditions of, being satisfied that the application has been made without unreasonable delay, satisfaction that substantial loss may occur if the order is not granted and the furnishing of security for the due performance of the court’s orders. (See the case of Halai & another v Thornton & Turpin (1963) Ltd [1990] KECA 65 (KLR)). 19. It has also been held that the court, in exercising its discretion, should also opt for the lower rather than the higher risk of injustice and finally the court will also consider the overriding objective as stipulated in sections 1A and 1B of the Civil Procedure Act, which the courts are now enjoined to give effect to. (See Machira t/a Machira & Co Advocates v East African Standard [2002] KEHC 1167 (KLR)). 20. The appellant submits that her application meets the conditions for grant of an order of stay of execution pending appeal. 21. On the requirement that the application has been made without unreasonable delay, the ruling the subject of the appeal and the application herein was delivered on 29th September 2025 and the memorandum of appeal was filed on 8th October 2025. That was within the statutory period provided for filing an appeal to the High Court. The present application was also filed on 8th October 2025, just about one week after the ruling was rendered. I am satisfied, as submitted by learned counsel, that the application was filed within a reasonable time and therefore that condition is satisfied. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4526/eng@2026-02-12 5

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22. On the requirement to demonstrate substantial loss, learned counsel submits that if stay is not granted, execution of the Kadhi’s Court’s judgment will negate the very essence of the appeal lodged by the applicant. 23. Indeed, the appeal seeks to review the decision of the Kadhi’s court declining to review the judgment. I have had occasion to look at the judgment delivered by the trial court as well as the ruling for review thereafter. At this point, I am precluded from making any comment on them. 24. Suffice it to say that if this court finds that there were good grounds to review the judgment and that trial court’s decision was in error, it means that the judgment will be subject to review. If the same would have been executed, then the appeal on the orders declining to grant a review would be rendered nugatory. 25. In the case cited by learned counsel of James Wangalwa & another v Agnes Naliaka Cheseto [2012] KEHC 1094 (KLR) the High Court held that regarding the issue of substantial loss that: “ No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process. The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the Applicant as the successful party in the appeal. This is what substantial loss would entail, a question that was aptly discussed in the case of Silverstein v. Chesoni [2002] 1KLR 867, and also in the case of Mukuma v Abuoga The last case, referring to the exercise of discretion by the High Court and the Court of Appeal in the granting stay of execution, under Order 42 of the CPR and Rule 5(2) (b) of the Court of Appeal Rules, respectively, emphasized the centrality of substantial loss thus: “ …the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.” 26. I am aware that the respondent has a decree in his favour and he is entitled to enjoy the fruits thereof. But the applicant also has her right to appeal. The court has to balance the interests of the applicant who is seeking to preserve the status quo pending the hearing of the appeal so that her appeal is not rendered nugatory and the interests of the respondent who is seeking to enjoy the fruits of his judgment. The dispute between the parties involves matrimonial property. It is not about a buyer and a seller or mortgagor and mortgagee. The interests of the parties here have to be carefully balanced so as to try and minimize the scars of their divorce. Neither of the parties has indicated that he or she was rendered destitute by the judgment. Balancing the two competing interests in this case, I find that the loss that would be suffered by the applicant would be substantial if the stay order is not granted. 27. However, this issue is evened out on the next requirement to be satisfied for stay of execution to issue that is, “such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.” 28. The applicant has not offered to provide any security. However, as submitted by learned counsel the form of security to be provided is at the discretion of the court. In that case, whether or not the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4526/eng@2026-02-12 6

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applicant has offered one, what is important is the satisfaction of that condition. The court will in its discretion set and require an appropriate security from the applicant, failure to which her application fails. 29. Consequently, I find that the application herein has merit and in order not to render the intended appeal nugatory, the application is granted on conditions. 30. The application is allowed and stay of execution pending appeal is granted on the terms that stay of execution of the decree of the Kadhi’s court in Matrimonial Cause No. KCMATC No. E001 of 2024 ASM v HIK is granted pending hearing and determination of the appeal filed herein on condition that the applicant deposit in court a sum of KShs 500,000/= or in the alternative to provide a suitable bank or Sacco guarantee of this sum. 31. Upon satisfaction of this condition, the status quo obtaining as at the time of filing the application on 8th October 2025 shall remain effective or if it has changed, it shall be reverted to. 32. Failure by the applicant to abide by the condition hereinabove, this application will be deemed to have been dismissed. 33. The record of appeal shall be filed within 60 days from today. 34. Costs of the application will abide by the appeal. 35. Orders accordingly. DELIVERED, DATED AND SIGNED AT KWALE ON THE VIRTUAL PLATFORM, TEAMS THIS 12TH DAY OF FEBRUARY 2026. Signed for/by HON. JUSTICE ANDAYI W.F. THE JUDICIARY OF KENYA KWALE HIGH COURT HIGH COURT DIV Date: 2026-02-15 13:24:14 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4526/eng@2026-02-12 7

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