Kamundi & another (Practising as Kinyua Muyaa & Co Advocates) v South Coast Holdings Limited (Miscellaneous Civil Application E004 of 2024) [2025] KEELC 5817 (KLR)
The bottom line
#A Kenyan court paused a Kshs. 1.17 million payment ruling, but only because the company agreed to deposit Kshs. 3.5 million security within 45 days.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.What are the legal parameters governing the grant of stay of execution?
- 2.Whether the Notice of Motion application dated 14th May, 2025 seeking to stay execution of the order issued on 24th April 2025 in ELC Misc. Civil Application Case No. E004 of 2024 pending the hearing and determination of the appeal is merited?
- 3.Who will bear the costs of the Notice of Motion application dated 14th May, 2025?
Key legal issues
#Substantial loss
The Applicant proved it would suffer substantial loss if stay were not granted
Applying Kenya Shell Ltd and related authorities, the court found the risk that further sums arising from re-taxation might be executed against the Applicant, who had already fully paid the taxed amount, would render the intended appeal nugatory.
Undue delay
The application was filed timeously
The ruling was delivered on 24th April 2025, the application filed 14th May 2025 and the Notice of Appeal on 29th April 2025; the court found the application made expeditiously.
Security for due performance
Stay granted only on condition of a deposit of Kshs. 3,500,000/- into a joint escrow account
Although the Applicant offered no security, the court, invoking its discretion and equity, fixed a fair sum lower than half the contested amount to be deposited in a joint escrow account pending appeal.
Legal principles established
#- The three conditions for granting stay of execution pending appeal under Order 42 Rule 6(2) - substantial loss, no undue delay, and security - are conjunctive and must all be met
- Substantial loss is a qualitative concept referring to loss of real worth or value that would render an appeal nugatory
- Security for due performance of the decree is mandatory and the court is not bound by the type of security offered
Court orders
#- 1.The Notice of Motion application dated 14th May, 2025 be and is hereby found to have merit and hence allowed subject to fulfilment of the pre-conditions stated
- 2.An order of stay of execution of the Court's order arising from the Ruling delivered on 24th April, 2025 pending the hearing and determination of the intended appeal in the Court of Appeal
- 3.The Applicant to deposit Kenya Shillings Three Million Five Hundred Thousand (Kshs. 3,500,000/-) as security in a joint escrow bank account in the names of the Law firms of Messrs. Anne Wamithi & Company Advocates and Messrs. Kinyua Muyaa & Company Advocates within 45 days from delivery of the Ruling
- 4.The direction that the matter be referred to the Taxing Master at Mombasa on 9th July, 2025 be deferred awaiting mention on 13th October, 2025
- 5.Failure to comply with the security condition, the application shall automatically stand dismissed and execution shall ensue procedurally as provided by law
- 6.There shall be no orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 1A, 3A & 63(e) of the Civil Procedure Act, Cap. 21 and Order 42 Rule 6 and Order 51 Rules (1), (3) of the Civil Procedure Rules, 2010
Relief refused
#Refund of the taxed amount of Kshs. 1,173,387.00 paid to the Advocates/Respondents on 9th September 2024
The court granted stay only subject to a security deposit; no refund order was made, the refund issue being premature pending re-taxation
Unconditional stay without security
The Applicant never offered or showed willingness to furnish security as required under Order 42 Rule 6(2)(b)
Costs
There shall be no orders as to costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
That the Notice of Motion application dated 14th May, 2025 be and is hereby found to have merit and hence allowed subject to the fulfilment of the Pre – Conditions stated herein.
That this Honourable Court do hereby issue an order to stay the execution of its Order arising from the Ruling of this Honorable delivered on 24th April, 2025 pending the hearing and determination of the Intended appeal in the Court of Appeal.
That there shall be no orders as to costs.
Substantial loss is what has to be prevented by preserving the status quo because such loss would render the Appeal nugatory.
That failure to adhere with the condition under Clause (c) herein above of this Ruling the Notice of Motion application dated 14th May, 2025 shall automatically stand dismissed thereof and execution of the Order shall ensue procedurally as provided for by law.
Issues in the judgment
#Internal contradiction on whether the application was filed with or without delay - the court simultaneously finds no delay yet states 'It was with undue delay'
Internal contradiction in the security computation - the court states half of Kshs. 12,785,880 'ideally amounting' to Kshs. 6,392,940 (correct half) yet the figure as printed reads 'Five Eighty Six Million Three Ninety Two Thousand Nine Fourty Hundred'
Contradictory descriptions of the Bill of Costs date - the Applicant's case says the Bill is dated 1st February 2024 while the Respondents refer to a Bill dated 1st December, 2024
Contradictory dates for the Replying Affidavit - introduced as dated 23rd May, 2023 in the introduction but later described as dated 23rd June, 2025
Contradiction on the tax assessed - paragraph 27 states the Taxing Master assessed instruction fees at Kshs. 590,000 while earlier passages record a taxed total of Kshs. 1,173,387
Contradiction in finding on security - the court finds the Applicant 'adequately demonstrated the substantial loss... as stipulated by sub-rule 2b' despite earlier finding the Applicant offered no security at all
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kamundi & another (Practising as Kinyua Muyaa & Co Advocates) v South Coast Holdings Limited (Miscellaneous Civil Application E004 of 2024) [2025] KEELC 5817 (KLR)", Case Analysis (2025). ELC Misc. Civil Application (reference to ruling of 24th April 2025 in ELC Misc. Civil Application Case No. E004 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5817/eng@2025-07-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.