https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4672

Aya Ltd v Kalenjin Auto and Hardware Ltd & another (Environment and Land Appeal E007 of 2026) [2026] KEELC 4672 (KLR) (23 July 2026) (Ruling) Neutral citation: [2026] KEELC 4672 (KLR) Republic of Kenya In the Environment and Land Court at Eldoret Environment and Land Appeal E007 of 2026 CK Yano, J July 23, 2026 Between Aya Limited Applicant and Kalenjin Auto And Hardware Limited 1st Respondent Gurdit Singh Shop 2nd Respondent Ruling 1.The Appellant/Applicant herein filed a Notice of Motion dated 26th March, 2026 against the Respondent seeking the following orders:-i.Spent.ii.That there be stay of execution of the judgement delivered on 16th March, 2026 in Eldoret BPRT Case No. E038 of 2024 Gurdit Singh Shop Vs Aya Limited consolidated with Eldoret BPRT Case No. E052 of 2024 Kalenjin Auto and Hardware Limited Vs Aya Limited and any other consequential orders thereto pending the hearing and determination of this application inter-partes.iii.That there be stay of execution of the judgment in Eldoret BPRT Case No. E038 of 2024 Gurdit Singh Shop Vs Aya Limited consolidated with Eldoret BPRT Case No. E052 of 2024 Kalenjin Auto and Hardware Limited Vs Aya Limited delivered on 16th March, 2026 and any other consequential orders thereto pending the hearing and determination of the intended appeal.iv.That the honourable court be pleased to make any other or further orders as the ends of justice may demand.v.Costs of the application abide the intended appeal. 2.The application is premised on 11 grounds on the face thereof, and the Supporting Affidavit sworn on even date by Isaac Njoroge, a director of the applicant. 3.The applicant deponed that the effect of the judgment delivered on 16.03.2026 in Eldoret BPRT Case No. E038 of 2024 between Gurdit Singh Shop vs Aya Limited as consolidated with Eldoret BPRT Case No. E052 of 2024 between Kalenjin Auto and Hardware Limited Vs Aya Limited, was to dismiss the Notices of Termination of tenancy issued to the respondents both dated 25.01.2026. 4.In addition, the Tribunal in its judgment did award the respondents costs of the suit which was assessed at Kshs. 50,000/= each thus totaling to Kshs. 100,000/= 5.That aggrieved by the said judgment delivered on 16.03.2026, the applicant has since lodged an appeal against the same vide the memorandum of appeal dated and filed on 25.03.2026. 6.It is his contention that the applicant’s appeal is arguable and has a high chance of success and therefore, there is need to stay the execution of the judgment of the tribunal so that the appeal is not rendered nugatory and to further allow the determination of the real issues in dispute between the parties. 7.Thus, he did aver that unless the orders sought for stay of execution are granted, the applicant stands to suffer substantial loss and damage. 8.He further deponed that the application has been made without unreasonable delay and in good faith and that the applicant is willing and ready to provide such security as the court may order for the due performance of such decree or as may ultimately be binding on it. 9.It is the applicant’s claim that the respondents are men of straw and thus, if the decretal sums are paid to them in full, they may be unable to refund the same in the event that the appeal succeeds and in turn may render the appeal nugatory. 10.He maintained that the respondents do not stand to suffer any prejudice if the orders sought are granted and thus urged the court to allow the application as sought in the interest of justice. 11.The application was opposed. Both the 1st and 2nd Respondents filed their various responses to the present application. 12.The 1st Respondent filed a Replying Affidavit dated 17th April, 2026, sworn by one Mansoorali G.J. Sorathia, the director of the 1st respondent, in response to the averments made in the present application. 13.He confirmed that the present application is as a result of the judgment of the tribunal issued on 16.03.2026, whose effect was to dismiss the notice to terminate the tenancy. It is however his claim that the orders of stay in the nature sought cannot legally be sustained since the said judgment was a negative judgment incapable of being executed and/or stayed and there is therefore no threat of execution since the notices were dismissed and the 1st respondent was allowed quiet possession of the leased premised. 14.In response to the issue of costs of Kshs. 50,000/= payable to the 1st respondent, he admitted that having been a successful litigant, the 1st respondent was awarded costs of the suit assessed at Kshs. 50,000/=. He however argues that if the stay sought is with regards to the costs awarded of Kshs. 50,000/=, there is no basis of challenging the same from the grounds in the memorandum of appeal. 15.Be as it may, it is the 1st respondent’s contention that a challenge on the award of costs cannot be premised on an appeal vide a memorandum of appeal but that the same should have been done through a Reference. 16.Further and without prejudice to the foregoing, it is his claim that the present application does not meet the threshold set out under Order 42 Rule 6 of the Civil Procedure Rules. In addition, it is his contention that no evidence has been presented before the court on the inability of the 1st respondent to refund the Kshs. 50,000/= awarded as costs if paid. 17.On the contrary, the deponent avers that the 1st respondent is a company that has been in operation at the appellant/applicant’s premises for 51 years since 1975 and is therefore capable of refunding the costs awarded of Kshs. 50,000/= if paid by the applicant. 18.In conclusion, the 1st respondent urged the court to dismiss the application to dismiss the application with costs. 19.The 2nd Respondent filed a Replying Affidavit dated 17th April, 2026, sworn by one Vandeep Singh, the sole proprietor of the 2nd respondent, in response to the present application. 20.It is his claim that the orders sought in the present application are not legally tenable for the reason that the judgment sought to be stayed was a negative judgment incapable of being executed. That the effect of the judgment of the tribunal delivered on 16.03.2026 was to dismiss the notice of termination of tenancy issued by the applicant and to allow the 2nd respondent to continue with quiet possession of the leased premises, hence there is nothing to be stayed. 21.With regard to the award of Kshs. 50,000/= assessed as costs of the suit, it was his contention that the same was issued to the 2nd respondent by virtue of being the successful party in the proceedings before the tribunal. 22.It is his claim that if the stay of execution is sought on the basis of the amount awarded and assessed at Kshs. 50,000/=, then this court and the memorandum of appeal filed is not the correct forum. He asserted that a challenge on costs should be done through a Reference and not through a memorandum of appeal. 23.In the alternative and without prejudice to the foregoing, it was his claim that from a perusal of the memorandum of appeal, there is no challenge on the costs awarded by the tribunal and therefore, there is no reason advanced before this court to warrant the grant of the orders sought on account of the amount of costs awarded. 24.He further deponed that the present application does not meet the threshold outlined in Order 42 Rule 6 of the Civil Procedure Rules to warrant the grant of the orders sought. In addition, it was his claim that no evidence had been presented before the court to support the allegations of the 2nd respondent’s inability to refund the sum of Kshs. 50,000/= awarded as costs of the suit if paid by the applicant. 25.He added that the 2nd respondent is a business that has been in operation at the applicant’s premises for 27 years since 1999 and is therefore capable of refunding the sum of Kshs. 50,000/= if paid. He attached a letter from Guardian Bank and the bank statements from 01.02.2026 to 11.04.2026 as proof of the 2nd respondent’s financial ability. 26.In conclusion, he urged the court to dismiss the present application with costs to the 2nd respondent. 27.Both replying affidavits by the 1st respondent and the 2nd respondent were duly served upon the applicant. However, on a perusal of the court record and the CTS online filing platform, I have not seen any response filed by the applicant, either in the form of a Further or Supplementary Affidavit filed in response to the averments contained in the respondents’ replying affidavits. 28.This court issued directions on the 22.04.2026 that the present application be canvassed by way of written submissions. The appellant/applicant filed its submissions dated 14.05.2026 while the respondents filed their submissions also dated 14.05.2026 together with authorities, which I have read and considered. 29.When this matter came up in court on 22/4/2026, Ms. Rotich informed the court of their intention to record a consent/settlement with a view of compromising the present application. 30.On 18/5/2026, parties were granted 7 days to record the consent, if any. However, by the time of writing this ruling, no consent had been recorded with a view of settling the application. I will therefore proceed to determine the application as hereunder. Analysis and Determination: 31.Having carefully considered the Application and the grounds therein, the Supporting Affidavit and the annexures thereto, the replying affidavits and annexures in response to the application as well as the rival submissions in totality, it is my considered view that the issues arising for determination are as follows: -i.Whether the orders for stay of execution sought herein are legally tenable in the circumstances.ii.Whether an Order for Stay of Execution can issue against the judgment of the BPRT issued on 16.03.2026.iii.Whether the present application is merited.iv.Who shall bear the costs of the present Application. 32.Having identified the above issues for determination, I will now proceed to discuss the same as hereunder. i. Whether the orders for stay of execution sought herein are legally tenable in the circumstances; 33.The issue herein seeks to determine whether the orders sought in the present application in the nature of stay of execution of the judgment of the BPRT Tribunal delivered on 16.03.2026 in the proceedings known as Eldoret BPRT No. E038/2024 as consolidated with BPRT No. E052/2024 are legally tenable. 34.The respondents aver that the effect of the judgment of the Tribunal was to dismiss the Notices of Termination of Tenancy and direct the respondents to continue with their quiet possession and occupation of the appellant’s premises. It is therefore their claim that the said judgment is a negative judgment incapable of execution and the orders sought in the present application are therefore not legally sustainable. 35.With regard to the award of costs which was assessed at Kshs. 50,000/= by the tribunal payable by the applicants, it is the respondents’ claim that from a cursory look at the memorandum of appeal, there is no challenge on the costs awarded and assessed by the tribunal. 36.In the alternative and without prejudice, it is the respondents’ claim that a challenge on the award of costs should only be done by way of a Reference and not through a Memorandum of Appeal. They therefore argued that the applicant has not provided any sufficient reason to warrant the grant of the orders of stay of execution sought herein. 37.The applicant on its part avers that there is need to grant the orders for stay of execution in the nature sought so that the appeal filed is not rendered nugatory. The applicant maintained that it stands to suffer substantial loss and damage unless the orders sought are granted for the reason that the respondents may move to execute the judgment issued in their favour. 38.With regard to the issue of costs of the suit awarded to the respondents and assessed at Kshs. 50,000/= and whether the same can be stayed, they relied on the provisions of Order 21 Rule 9 of the Civil Procedure Rules and maintained that the same falls under the purview of Order 42 Rule 6 of the Civil Procedure Rules. In the end, it was its contention that the orders sought in the present application are tenable. 39.The question that therefore follows from the foregoing is whether the judgment of the BPRT in the proceedings known as Eldoret BPRT No. E038/2024 as consolidated with BPRT No. E052/2024 delivered on 16.03.2026 is a negative order incapable of execution or not. 40.An order or judgment will be considered a negative order or judgment where no action nor obligation has been placed upon the appellant to be performed. Justice O.A. Sewe in the case of Kenya Commercial Bank Limited v Tamarind Meadows Limited & 7 others [2016] KEHC 8610 (KLR) while discussing the issue of negative orders relied on the following cases and held as follows: -“16.In Kanwal Sarjit Singh Dhiman v Keshavji Jivraj Shah [2008] eKLR, the Court of Appeal, while dealing with a similar application for stay of a negative order, held as follows:“The 2nd prayer in the application is for stay (of execution) of the order of the superior court made on 18th December, 2006. The order of 18th December, 2006 merely dismissed the application for setting aside the judgment with costs. By the order, the superior court did not order any of the parties to do anything or refrain from doing anything or to pay any sum. It was thus, a negative order which is incapable of execution save in respect of costs only (see Western College of Arts & Applied Sciences vs. Oranga & Others [1976] KLR 63 at page 66 paragraph C).”17.The same reasoning was applied in the case of Raymond M Omboga v Austine Pyan Maranga (supra), that a negative order is one that is incapable of execution, and thus, incapable of being stayed. This is what the Court had to say on the matter:“The order dismissing the application is in the nature of a negative order and is incapable of execution save, perhaps, for costs and such order is incapable of stay. Where there is no positive order made in favour of the respondent which is capable of execution, there can be no stay of execution of such an order...The applicant seeks to appeal against the order dismissing his application. This is not an order capable of being stayed because there is nothing that the applicant has lost. The refusal simply means that the applicant stays in the situation he was in before coming to court and therefore the issues of substantial loss that he is likely to suffer and or the appeal being rendered nugatory do not arise..."18.In the premises, I would be of the same view and find that there are no orders flowing from that ruling in respect of which a stay order can validly be granted. As was expressed in Raymond M Omboga v Austine Pyan Maranga (supra), there is nothing that the Applicants have lost by virtue of the mere fact of dismissal of their application, the issue of substantial loss would not arise...” 41.I have looked at the judgment of the BPRT delivered on 16.03.2026 and which is the subject of the appeal herein and I do note that the effect of the said decision was to dismiss the Notices for Termination of tenancy dated 25.01.2024 and to further direct that the tenants be allowed to continue with their quiet possession of their respective premises. The tribunal further assessed the costs to be awarded to each tenant at Kshs. 50,000/= 42.In essence therefore, save for the issue of costs, the judgment of the BPRT delivered on 16.03.2026 was a negative judgment arising from the dismissal of the notices for termination of tenancy dated 25.01.2024. There was no action or obligation placed upon the appellant to be performed. The tribunal did not direct the appellant to do anything or refrain from doing anything. Subsequently, the dismissal order is in the nature of a negative order incapable of execution save in respect of costs. 43.Having held that the impugned judgment issued on 16.03.2026 is a negative order incapable of execution, the question that follows is whether the order for stay of execution in the nature sought can be issued in respect to costs of the suit only. 44.Justice W.A. Okwany when faced with a similar situation in the case of Anthony Kiplangat Ngeno & Paul Kiprono Cheruiyot v Jonathan Ole Tankoi,Solomon Ole Tarakwa,Johana Kiptonui Cheruiyot & Joseph Tonui [2016] KEHC 5320 (KLR) held as follows:-“The above analysis brings me to the question of whether the court can grant an order for stay of execution in respect to costs. The answer to this question is to the negative because orders for stay of execution is generally and ideally granted only in instances where the appeal filed would be rendered nugatory unless the stay sought is granted…” 45.Thus, persuaded by the decision above, my answer to the question of whether an order for stay of execution can be issued in respect to the issue of costs only is in the negative. 46.An order for stay of execution is primarily issued where there is a risk of the appeal filed being rendered nugatory. In this case, there is no demonstration of any substantial loss which is likely to be suffered by the appellant, who in essence was neither ordered to do or to refrain from doing anything. Substantial loss is the cornerstone for the award of an order of stay of execution. 47.Moreover, from a cursory look at the memorandum of appeal dated 25.03.2026, the issue of costs as assessed and awarded has not been raised. It is therefore evident that the appeal cannot be rendered nugatory in this respect. 48.Be that as it may, the law and procedure on challenging an award of costs issued/awarded and assessed by a court or a tribunal is clear and results in the filing of a Reference vide a Miscellaneous Cause, which is not the case herein. 49.In view of the foregoing, it is the finding of this court that the orders for stay of execution sought in the present application are untenable in the circumstances. 50.Having held that the orders sought are not legally tenable, this court finds that discussing the remaining issues would amount to an academic exercise and issues nos. (ii) and (iii) fall by the wayside. Who shall bear the costs of the present Application 51.The general rule is that costs shall follow the event in accordance with the proviso to section 27 of the Civil Procedure Act, unless the court is satisfied otherwise. 52.In the present case, even though the Court has held that the Applicant has failed to prove its application to the required standard, I find that the circumstances of this case require that parties bear their own costs. Conclusion: 53.The upshot of the above is that the present application vide the Notice of Motion dated 26th March, 2026 is not merited and is hereby dismissed with no order as to costs. 54.It is so ordered. DATED, SIGNED AND DELIVERED AT ELDORET THIS 23RD DAY OF JULY, 2026.HON. C.K. YANOJUDGERuling delivered in the presence of: -Ms. Odwa for Respondents.No appearance for Kalya & Co. for Appellant.Court Assistant – Laban