https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3018

Abninasir v R&K Investments Limited & 2 others (Land Case Appeal E202 of 2025) [2026] KEELC 3018 (KLR) (14 May 2026) (Ruling) Neutral citation: [2026] KEELC 3018 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Land Case Appeal E202 of 2025 MN Kullow, J May 14, 2026 Between Ibrahim Shariff Abninasir Plaintiff and R&K Investments Limited 1st Defendant Betty Wangari Gikonyo 2nd Defendant Muchochi Ruiru Gikonyo 3rd Defendant Ruling Brief facts 1.The applicant herein obtained interim injunctive orders on the 7th May 2025, restraining the Defendants/Respondents from terminating the applicant’s Tenancy in plot No. 112 (known as Nancy Wanjiru House) situated in section iii Eastleigh, Nairobi 2.The respondents then filed then filed a notice of motion application dated 12th June 2025 whereas the interested party filed an application dated 31st July 2025 both applications seeking to review, vary and set aside the said orders. The court allowed both applications via a ruling dated 30th September 2025 which ruling is the subject of this application. 3.The application sought the following ordersa.Spentb.That the enforcement of the ruling made by the Honourable M. A Otindo SPM on 30th September, 2025 be stayed at the first instance, pending the hearing and determination of the Applicant’s/Appellant’s Application.c.That the Applicant/Appellant will suffer irreparable and substantial loss and damage if the orders sought are not grantedd.That the Honorable court do issue any or further orders as may be appropriate in the interest of justice and fairnesse.That the costs of this Application be provided for. 4.The application was premised on grounds as in the supporting affidavit sworn by the applicant which grounds interalia that the trial court failed to appreciate that the Applicant had made significant investment would suffer substantial loss and irreparable damages if he were not granted the orders and that the Respondents being the Landlords would not be prejudiced if the orders subsisted as they had been paid rent.That the trial court erred, by finding that a 20-year lease could be terminated immediately without sufficient notice and that the notice of termination dated 8th January 2025 was a valid termination notice. Respondent’s reply 5.The 1st to 3rd respondents in response filed a replying affidavit sworn by the 3rd respondent on the 25th November 2025.He deponed that the trial court did not erred in the ruling as having heard all parties, the honourable magistrate was convinced that the applicant herein had approached the court with unclean and was not deserving of the equitable remedies. That the applicant had failed to satisfy the conditions for grant of interlocutory injunction hence setting aside the interim orders 6.The 4th respondent filed a replying affidavit sworn on the 21st October 2025.He deponed that there was material non-disclosure by the applicant that led to him being granted the interim orders of 7th May 2025.He reiterated the averments in the 1st to 3rd respondent’s replying affidavit that the interim orders were set aside the court being convinced that the applicant had not met the conditions for issuance of injunctive ordersHe further deponed that the applicant was seeking to introduce new evidence which had not been presented in the lower court at the appellate stage in contravention of order 2 rule 4 of the civil procedure rules Submissions by parties Applicant’s submissions 7.The applicant filed submissions dated 19th October 2025 where he submitted that the court has the discretion to grant stay being satisfied that there is sufficient cause, that the application is made without delay and that there is provision for security. He submitted that his application was filed on 4th October 2025 having prior served a notice of appeal on the same date the ruling was delivered on 30th September 2025 hence filed within reasonable time. He further submitted that he will suffer irreparable harm since he had made a huge investment in the sum of Ksh 50,000,000/= relying on the case of Kango -Vs- Nthuli (Civil Appeal 219 of 2023) [2024] KEHC 117 (KLR) (17 January 2024) (Ruling)Counsel further submitted that that the applicant has shown sufficient cause being that he had filed a memorandum of appeal that raised arguable and triable issues. Lastly counsel submitted that he had committed to providing reasonable security as ordered by the court. 1st ,2nd and 3rd respondents’ submissions 8.The respondents submitted that there was no substantial loss to be incurred by the applicant as there was no tenancy relationship as between the applicant and 1st 2nd and 3rd respondents having terminated on 8th January 2025.That before the trial court hearing all parties was convinced that the applicant had failed to meet his contractual obligations hence undeserving of the orders relying on the case of Machira & Co Advocates -Vs- East African Standard (2002)KEHC 1167 (KLR)The respondent submitted that the applicant had failed to demonstrate substantial loss if stay orders pending appeal are not granted, being that that the orders of stay were not to prevent anything, the suit premises being occupied by the 4th respondent. 4th Respondent’s submissions 9.The 4th respondent submitted that the applicant had not demonstrated how substantial loss will occur to him being that the figures he had stated did not have any receipts to back up the said arguments, neither had he provided any sufficient reason to warrant stay,He further submitted that he was in occupation of the suit property via a lease agreement dated 1st March 2025 and the orders of stay have been overtaken by Analysis and Determination 10.The Appellants’ prayer for stay of execution is brought under Order 42 Rule 6 (1) and (2) the Civil Procedure Rules which provided provides that;(1)No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except appeal case of 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 sub-rule(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;b.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”. 11.It follows therefore that, in order to succeed in an application for stay of execution or proceedings pending appeal, an applicant must demonstrate;a.That the application has been brought without undue delay.b.That substantial loss may result unless the order of stay is issued, and;c.The Applicant must give security for the due performance of any decree or order that may ultimately be found to be binding on the applicant. 12.In the present case, the impugned ruling was rendered on 30th September 2025 while this application was filed on 4th October 2025 that is four (4) days later. In the circumstances, this application was filed timeously 13.As regard substantial loss, the Applicants argue that they will suffer loss of investment to a sum of Ksh 50,000,000 /=broken down into rental arrears he owed as at the time of filing of the lower court matter which arrears he had cleared and a further overpay for the next quarter of the year till the month ending October 2025,costs of renovations to the building, at a cost of Kshs 10,518,845/= and paid out Ksh 5,918,845 to the contractor and cost incurred in setting up a fast food restaurant which had been calculated to sum up to Ksh 20,309,600/= 14.On the other hand, the Respondents indicated that the applicant had approached the court with unclean hands claiming to have settled the rental arrears before he made the application that gave rise to the interim orders therefore misleading the court that there were no arrears. On the issue of the sums incurred in renovation, the respondents argued that the applicant had not produced any credible evidence to show that he had paid the sums he claims to have paid out to contractors. It was further argued that the lease having been terminated on the 8th January 2025, the applicant had no rights developing on the suit property being that he was still in arrears. 15.This Court has noted the annexure to the supporting affidavit of the alleged payments to the contractors. The documents do not shed light on what exactly the applicant was paying for and to whom it was being paid to. The Mpesa statements are addressed to individuals and the court cannot make an assumption based on this evidence as they could be payments to other third parties not parties to this suit, hence I find the evidence not conclusive. 16.The lower court was convinced that there was material non-disclosure of facts hence set aside the interim orders. The trial court in coming up with this decision was of the view that, it would not had granted the interim orders, as the material non-disclosure applicant at an advantaged position hence dismissing the applicant’s application. That had it known on the very 1st instance that the applicant had not settled arrears to a tune of Ksh 1,700,000 the orders would not have issued. The court emphasized that the plaintiff’s conduct did not warrant him being granted equitable remedies. This court is satisfied that the trial court would not have granted the interim orders granted by Hon M.A Otindo on the 7th May 2025 had the Applicant disclosed all the facts to court especially that he had not settled the arrears as at the time of the application. This reasoning can be inferred in what was stated in the case of Furthermore, in the case of Republic -Vs- Business premises rent Tribunal, Interested Party John Mwangi Muturi and 3 others [2011] eKLR where the High Court held that,“ For a party to fail to disclose material facts or to disclose them in such a way as to mislead the court as to the true facts, amounts to abuse of the court process and the court ought, for its own protection and to prevent an abuse of the process, to refuse to proceed any further with the examination of the merits.”Further in the case of Ahmed Musa Ismael -Vs- Itumba ole Namorue and 4 others [2014] KECA 689 (KLR), the court of Appeal held that:-“ Deliberate concealment of material facts can only be seen as an attempt to mislead the court to steal a match on opposing parties. It also comprises an Applicant’s chances of obtaining a favourable exercise of this or any other court’s discretion. As this court stated in David Kamau Gakuru versus National Industrial Credit Bank Ltd (Civil Appeal No. 84 of 2001) an injunction being an equitable remedy cannot be granted to a party who has demonstrated openly by his conduct that he is undeserving of the equitable reliefFurthermore, the trial court held that the applicant had failed to proof a prima facie case to grant injunctive orders, having given very solid grounds as to why which reasoning I will agree with. Having gone through the ruling, I do not see where the trial court erred as the applicant avers and for that reason, I find that no substantial loss has been established neither has sufficient cause been established.Having failed to show how substantial loss will be occasioned, then the orders of stay cannot issue as against the ruling. In the case of Kenya Shell Limited -Vs- Benjamin Karuga Kigubu & Another (1982-1988) KAR 108 the Court of Appeal stated. “It is usually a good rule to see if order 41 Rule 4 of the Civil Procedure Rules can be substantiated. If there is no evidence of substantial loss to the applicant, it would be rendered nugatory by some other event. Substantial loss in various forms is the cornerstone for granting stay.”In light of the above then it goes without saying that the applicant has not met the conditions for grant of stay as in order 42 rule 6(2) of the Civil procedure rules. 17.For the reasons as above, I make the following ordersi.That the Notice of motion dated 4th October 2025 is without merit and is hereby dismissed.ii.Costs of the application to be borne by the Applicant.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 14TH DAY OF MAY 2026.MOHAMMED N. KULLOWJUDGERuling delivered in the presence of: -N/A for the PlaintiffMr. Koech for the 2nd and 3rd RespondentMr. Amimo for Nganga for the 4th RespondentPhilomena W . Court Assistant