Ngugi v Nyamu (Environment and Land Appeal E003 of 2026) [2026] KEELC 3503 (KLR) (9 June 2026) (Ruling)

Ngugi v Nyamu (Environment and Land Appeal E003 of 2026) [2026] KEELC 3503 (KLR) (9 June 2026) (Ruling) Neutral citation: [2026] KEELC 3503 (KLR) Republic of Kenya In the Environment and Land Court at Muranga Environment and Land Appeal E003 of 2026 MN Gicheru, J June 9, 2026 Between Francis Chege Ngugi Appellant and John Baptist Nyamu Respondent (Being Appeal from the decision of the Business Premises Rent Tribunal ,Murang’a (the Honourable Member Hon. Patrick Kitur) delivered on the 18{{^th}} day of December, 2025 in Business Premises Rent Tribunal at Murang’a, Tribunal Case No. E010 of 2025) Ruling 1.This ruling is on the notice of motion dated 21-1-2026. The motion which is by the Appellant is brought under Article 165(6) and (7) of the Constitution of Kenya, Sections 1A, 1B and 3A of the Civil Procedure Act, Order 42 rule 6 and Order 51 rule 1 of the Civil Procedure Rules. 2.The motion seeks the following residual orders.3.That this Court be pleased to grant an order of stay of execution of the ruling and the consequential orders of the Hon. Member BPRT at Murang’a Case No.E010/2025 delivered on 18-12-2025 pending the hearing and determination of the appeal herein.4.Any other order/relief as the Court deems fit to meet the ends of justice.5.That the costs of this application be in the appeal. 3.The motion is based on fourteen(14) grounds and is also supported by the affidavit of the Appellant dated 21-1-2026. The gist of the motion is as follows. Firstly, on 30-9-2025, the Respondent filed an application before the Business Premises Rent Tribunal in case No. E010/2025 seeking an injunction against the Appellant to be restrained from evicting the Respondent, harassing him and denying him access to the suit property. The application was opposed by the Appellant. Secondly, on 18-12-2025, the BPRT ruled that the Respondent be awarded Kshs 180,000/= as compensatory damages. He was also awarded a further Kshs. 30,000/= as costs. Thirdly, being aggrieved by the decision of the BPRT, the Appellant appealed against the ruling. He fears that his tenant the Respondent may proceed and execute the decree rendering his appeal nugatory. It is therefore in the interests of justice that the current application be allowed. 4.The motion is opposed by the Respondent who has sworn a replying affidavit dated 6-3-2026 in which he replies as follows. One, there is nothing to show that the Appellant will suffer substantial loss. Execution is a lawful process and the Appellant should not stop the Respondent from enjoying the fruits of his judgment. Two, the Appellant has not shown any intention of depositing the decretal amount and costs to show seriousness in his appeal. For the above and other reasons, the application dated 21-1-2026 should be dismissed. 5.Counsel for the Appellant filed written submissions dated 20-4-2026 in which counsel urged the Court to apply the twin principles set in the case of Stanley Kangethe Kinyanjui vs. Tony Keter and 5 Others [2013] eKLR, which principles include,a.arguable appeal andb.appeal being rendered nugatory should the order of stay of execution not be granted. 6.I have carefully considered the motion in its entirety including the grounds, the supporting affidavit, the replying affidavit, the available record, the written submissions and the law cited therein as well as the issues identified. I find that the following issues arisea.Whether it is Order 42 rule 6 of the Civil Procedure Rules or Rule 5(2) (b) of the Court of Appeal Rules that applies in this case.b.Whether the Appellant has satisfied all the three conditions precedent to the grant of an order of stay of execution pending appeal. 7.Regarding the first issue, I find that it is Order 42 rule 6 of the Civil Procedure Rules that applies in this case. It applies by virtue of Section 19(2) of the Environment and Land Court Act which provides as follows.(2)The Court shall be bound by the procedure laid down by the Civil Procedure Act.The Kangethe Kinyanjui case cited by the Appellant’s Counsel applies to the Appeals to the Court of Appeal but not to Appeals to this Court. 8.As for the second issue, Order 42 rule 6(2) of the Civil Procedure Rules provides as follows.(2)No order for stay of execution shall be made under subrule (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;andb.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.An Applicant seeking stay of execution pending appeal must satisfy all the three requirements of substantial loss, absence of reasonable delay and provision of security. Failure to satisfy any of the three conditions disentitles the Applicant to the remedy. The use of the word ‘and’ after the word made in rule 2(a) and at the end of the subrule means that all the three conditions must be satisfied. It is my finding that the Appellant has not proved that he stands to suffer substantial loss. If he paid Kshs. 180,000/= to the Respondent, that would not be substantial loss. He has not said anywhere in his affidavit that the Respondent will not be in a position to refund the amount in the event that the appeal succeeds. 9.It is my finding that the current application was filed without unreasonable delay. The ruling appealed against was delivered on 18-12-2025. The current motion was filed on 22-1-2026. Under Order 50 rule 4 of the Civil Procedure Rules, time stopped running on 21-12-2025 and started running again on 14-1-2026. The filing of the motion was therefore on time. 10.In the seventeen (17) paragraph affidavit dated 21-1-2026, the Appellant has not made any offer for security for the due performance of the decree. This is one of the mandatory requirements in a case for stay of execution pending appeal. This failure by the Appellant undermines his application and demonstrates lack of good faith. 11.In conclusion and for the reasons already given, I find that the Appellant has failed to satisfy two of the three conditions precedent to the grant of stay of execution pending appeal yet for him to quality for the order, he needed to satisfy all the three condition. I therefore find no merit in the motion dated 21-1-2026 which I dismiss.Costs in the cause.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT MURANG’A THIS 9TH DAY OF JUNE, 2026.M.N. GICHERU JUDGE.Delivered online in the presence of; -Court Assistants – AntonyAppellant’s Counsel – Miss MusyokaRespondent – Absent