Ngala & 7 others v Habiba Investments Ltd
The bottom line
#The ELC at Kwale paused enforcement of orders evicting businesses from a road reserve, but only if the appellants deposit Kshs. 500,000 within 30 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 Appellants have satisfied the threshold set out under Order 42 Rule 6 of the Civil Procedure Rules, 2010 for the grant of stay of execution and/or enforcement of the orders of 6th March, 2026 pending the Appeal
- 2.Whether the Appellants have demonstrated the exceptional circumstances necessary for this Court to stay the further proceedings before the trial Court pending the Appeal
- 3.Who should bear the costs of the two applications
Key legal issues
#Substantial loss under Order 42 Rule 6(2)
Substantial loss was established: enforcement with police assistance would displace businesses operating for some twenty years before the appeal is tested, a loss not readily undone by damages
The court accepted that displacement of ongoing business operations before the propriety of the orders is tested on appeal is the mischief Order 42 Rule 6 guards against. The Respondent's countervailing prejudice from obstructed access was real but quantifiable and compensable, hence not of the same immediately irreversible character.
Unreasonable delay
Filing the stay application five days after the impugned orders was not unreasonable delay; the second condition was satisfied
The impugned orders were issued on 6th March 2026 and the Notice of Motion with a Certificate of Urgency was filed on 11th March 2026. The court held that a five-day timeline cannot by any measure be characterized as unreasonable delay.
Security for due performance of the decree
No security was offered, but the deficiency was cured by a conditional order requiring deposit of Kshs. 500,000/= within thirty days rather than outright refusal
The requirement is cumulative and cannot be dispensed with altogether. However, since the other two limbs were satisfied and unconditional dismissal would expose the Appellants to the very irreversible harm the doctrine averts, a conditional order was appropriate.
Stay of proceedings pending appeal
Refused: although the appeal was arguable, the Appellants showed a pattern of unexplained procedural default and the substratum of the appeal was not imperiled by the trial continuing
The Respondent's uncontroverted evidence disclosed late filing of the Statement of Defence, failure to comply with Order 11, and further default on 12th June 2026, none explained. The feared prejudice was already neutralized by the conditional stay of execution, and pre-trial directions do not foreclose the questions in the Appeal.
Costs of the two applications
Each party to bear its own costs of the 11th March 2026 application, with the costs of the 11th June 2026 application abiding the outcome of the appeal
Although costs follow the event, the two applications produced different outcomes - one substantially succeeded subject to conditions, the other failed - and both arise from the same underlying dispute, so awarding the Respondent the entirety of costs of both would not serve the interests of justice.
Legal principles established
#- The conditions under Order 42 Rule 6(2) are cumulative and conjunctive; absence of one affects the exercise of discretion
- A deficiency in furnishing security may be cured by a conditional order rather than outright refusal where the other limbs are satisfied
- Stay of proceedings is a more drastic remedy than stay of execution and must be exercised sparingly and judiciously
- A litigant seeking stay of proceedings must approach the Court with clean hands and demonstrate diligence in prosecuting the proceedings sought to be preserved
Court orders
#- 1.Notice of Motion dated 11th March, 2026 allowed: stay of execution and/or enforcement of the orders issued on 6th March, 2026 in Kwale MCELC No. E009 of 2026 pending hearing and final determination of ELC Appeal No. E012 of 2026
- 2.Stay conditional upon the 1st to 8th Appellants jointly and/or severally depositing security of Kshs. 500,000/= in cash into a joint escrow interest-earning account in the names of both advocates, or by insurance bond or bank guarantee acceptable to the Respondent, within thirty (30) days
- 3.In default of deposit of security within the stipulated period, the stay shall automatically lapse and the orders of 6th March 2026 become forthwith enforceable
- 4.Notice of Motion dated 11th June, 2026 dismissed
- 5.Trial Court at liberty to proceed with pre-trial directions and hearing of Kwale MCELC No. E009 of 2026, save that no final judgment shall be executed against the Appellants inconsistently with the conditional stay pending the Appeal
- 6.Mention on 5th November, 2026 for confirming filing of Record of Appeal and its disposition before ELC No. 1, Kwale
- 7.Each party to bear its own costs for the Notice of Motion dated 11th March 2026, while the Notice of Motion dated 11th June 2026 shall abide the outcome of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Magistrates' Court at Kwale
- Kwale MCELC No. E009 of 2026
- Jurisdiction invoked
- Order 42 Rules 6 and Order 51 Rule 1 of the Civil Procedure Rules, 2010; Sections 1A, 1B, 3A and 6 of the Civil Procedure Act, Cap. 21; Article 50(1) of the Constitution; inherent jurisdiction
Relief refused
#Stay of proceedings in Kwale MCELC No. E009 of 2026 pending the Appeal
Appellants failed to demonstrate exceptional circumstances and sufficient cause; their own conduct before the trial Court showed repeated unexplained non-compliance, and the risk of the Appeal being rendered nugatory was addressed by the conditional stay of execution
Costs
Each party to bear its own costs for the Notice of Motion application dated 11th March 2026, while the costs of the Notice of Motion dated 11th June 2026 shall abide the outcome of ELC Appeal No. E012 of 2026 (though paragraph 118 states the reverse allocation).
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 11th March, 2026 be and is hereby allowed on the following terms:
That the Notice of Motion application dated 11th June, 2026 be and is hereby dismissed.
In default of the deposit of security within the stipulated period, the stay granted herein shall automatically lapse without further reference to this Court, and the orders issued on 6th March 2026 shall become forthwith enforceable;
The conditions imposed by Order 42 Rule 6 (2) are cumulative.
Substantial loss in its various forms, is the corner stone of both jurisdictions for granting a stay. That is what has to be prevented.
the Appellants have not demonstrated the exceptional circumstances and sufficient cause required to warrant the more drastic remedy of a stay of proceedings
It is so ordered accordingly.
Issues in the judgment
#Costs allocation in paragraph 118 is reversed in final order (e)
Date of impugned orders inconsistently given as 6th May 2026 in one passage
Section heading 'VII' used for three different sections
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ngala & 7 others v Habiba Investments Ltd", Case Analysis (2026). Land Case Appeal E012 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5972/eng@2026-09-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.