Kamal Abdul Haleem v China Communications Construction Company Limited & 4 others
The bottom line
#The Kajiado Environment and Land Court paused execution of a Kshs. 6.6 million judgment, but only if the losing party deposits the full amount 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.Whether the Applicants have satisfied the requirements for stay of execution of the judgment delivered on 21st May 2026 and the subsequent decree pending the hearing and determination of the intended appeal
- 2.Whether the execution already commenced ought to be set aside
Key legal issues
#Whether substantial loss may result to the Applicants if execution proceeds
Yes - execution had progressed beyond issuance of warrants to actual attachment of movable property, and the threatened sale would alter the prevailing position; the risk of non-recoverability of the substantial decretal sum also supported a finding of substantial loss
The court held that while execution having commenced is not alone substantial loss, here property had already been attached and the threatened sale would change the status quo before the appeal. The decretal sum was substantial and the Applicants' specific apprehension about the Respondent's ability to refund, though not requiring proof, was a circumstance the court could weigh in finding sufficient risk of substantial loss.
Whether the applications were filed without unreasonable delay
Yes - the roughly two-month interval between judgment (21st May 2026) and the first application (17th July 2026) was not unreasonable, and the Applicants moved promptly once execution commenced
The court considered the period between judgment and filing in the circumstances of the case and found it did not amount to unreasonable delay, emphasising that the Applicants moved the court promptly once execution had commenced and attachment occurred.
What security is appropriate for the due performance of the decree
The entire decretal sum of Kshs. 6,604,560/= must be deposited in a joint interest-earning account in the names of the parties' advocates within 45 days as a condition of the stay
Order 42 Rule 6(2)(b) gives the court discretion to set security. Its purpose is to balance the Applicants' right of appeal against the Respondent's right to enjoy the fruits of judgment should the appeal fail. Having regard to the decretal amount and circumstances, the entire decretal sum was to be secured, rejecting the Applicants' lesser offer of Kshs. 2,000,000/=.
Whether the execution process was irregular for having commenced before taxation of costs without leave under Section 94 of the Civil Procedure Act
Yes - the decree included costs that had not been taxed when execution commenced, and there was no material showing leave to execute before taxation was obtained; the warrants and proclamation were set aside
Section 94 establishes that execution should await taxation of costs unless the court grants leave for execution before taxation. The record indicated execution commenced before taxation and without leave. Relying on Mombasa Cement Limited and MAAA v FSS, the court found the objection pertinent and ordered the warrants, proclamation and attachment set aside and the seized vehicle released.
Legal principles established
#- The requirements for stay of execution under Order 42 Rule 6(2) - substantial loss, no unreasonable delay, and security - are cumulative
- Mere commencement of execution does not by itself amount to substantial loss; the court must consider whether execution would occasion prejudice not adequately remediable if the appeal succeeds
- As a general rule under Section 94 of the Civil Procedure Act, execution should await taxation of costs unless leave is first obtained from the court
Court orders
#- 1.The Notices of Motion dated 17th July 2026 and 18th July 2026 are allowed in part
- 2.Stay of execution of the judgment delivered on 21st May 2026 and the subsequent decree pending the hearing and determination of the intended appeal
- 3.The stay is conditional upon the Applicants depositing Kshs. 6,604,560/= (the decretal sum) in a joint interest-earning account in the names of the advocates for the parties within forty-five (45) days
- 4.The Warrants of Attachment and Sale issued pursuant to the decree and the consequential proclamation are set aside
- 5.Motor vehicle registration number KCM 967T shall be released forthwith to the 1st Defendant/Applicant, unless otherwise lawfully held pursuant to a separate process
- 6.Each party shall bear its own costs of the two applications
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act (stay of execution pending appeal to the Court of Appeal)
Relief refused
#Stay conditioned only on deposit of Kshs. 2,000,000/= as security as proposed by the Applicants
The court held the entire decretal sum must be secured, not the lesser amount proposed
Respondent's prayer to dismiss the applications with costs
The court found the Applicants had satisfied the stay requirements and instead allowed the applications in part with no costs order against either side
Costs
Each party shall bear its own costs of the two applications.
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.
The singular issue for determination is whether the Applicants have satisfied the requirements for stay of execution of the judgment delivered on 21st May 2026 and the subsequent decree pending the hearing and determination of the intended appeal and, consequently, whether the execution already commenced ought to be set aside.
These requirements are cumulative.
It is settled that the mere fact that execution has commenced does not, by itself, amount to substantial loss.
The purpose of security is to balance the Applicants' right of appeal with the Respondent's right to ultimately enjoy the fruits of the judgment promptly should the appeal fail.
a) The Notices of Motion dated 17th July 2026 and 18th July 2026 are hereby allowed in part.
b) There shall be a stay of execution of the Judgment delivered on 21st May 2026 and the subsequent decree pending the hearing and determination of the intended appeal.
c) The stay granted under Order 2 above shall be conditional upon the Applicants depositing Kshs. 6,604,560/=, being the decretal sum, in a joint interest-earning account in the names of the advocates for the parties within forty-five (45) days from the date hereof.
d) The Warrants of Attachment and Sale issued pursuant to the decree and the consequential proclamation are hereby set aside.
e) Motor vehicle registration number KCM 967T, seized pursuant to the aforesaid execution process, shall be released forthwith to the 1st Defendant/Applicant, unless otherwise lawfully held pursuant to a separate process.
f) Each party shall bear its own costs of the two applications.
Issues in the judgment
#Case number dated 2021 but judgment and applications dated 2026 with no explanation
First application dated 17th July 2026 yet attachment occurred on 17th July 2026, though the ruling says the second application was precipitated by the attachment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kamal Abdul Haleem v China Communications Construction Company Limited & 4 others", Case Analysis (2026). ELC Case 13 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5871/eng@2026-09-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.