https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3357

Fremo Medical Centre Ltd v Kahihu (Environment and Land Appeal E225 of 2025) [2026] KEELC 3357 (KLR) (3 June 2026) (Ruling) Neutral citation: [2026] KEELC 3357 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Appeal E225 of 2025 JG Kemei, J June 3, 2026 Between Fremo Medical Centre Limited Applicant and Elizabeth Wairimu Kahihu Respondent Ruling 1.Before the Court is the Applicant's application dated 29/10/25, seeking orders to stay execution of the Ruling and the order of the Chairman of the Tribunal, both issued on 16/10/25, pending the hearing and determination of the appeal. 2.The application is supported by the grounds annexed thereto and the supporting affidavit sworn by Moffat Osodo on 19/10/25 on behalf of the Applicant. 3.That in its ruling of 16/10/25, the Tribunal ordered as follows;a.The tenant/Applicant to vacate the suit premises on or before 31/10/25b.The tenant to settle the rent arrears of Kshs 134,000/-by 31/10/25c.In default, the Respondent will be at liberty to break in and evict the tenant with the assistance of the OCS Riruta Police Stationd.Each party to bear their own costs. 4.The Applicant decried the delay in uploading the tribunal's decision to the Court Tracking System [CTS] platform, and that the tribunal has not responded to the Applicant's request for a certified copy. That amounts to a miscarriage of justice and a breach of the provisions of the Fair Administrative Actions Act and that the Tribunal's failure to deliver a substantive ruling is in violation of Section 4 of the Fair Administration Act. 5.That the impugned decision failed to appreciate the provisions of Section 7 of Cap 301, which provide that, upon receipt of the notice of termination of the tenancy, the tenant may notify the landlord of his unwillingness to comply with that notice or refer the matter to a tribunal, subject to section 6 of the said Act. 6.Further, that the Applicant is ready and willing to comply with any reasonable conditions the Court may impose to enable them to pursue the instant appeal. 7.It is averred that the instant appeal is merited and if the execution of the ruling is not stayed, the Applicant will be condemned without having been heard, which contravenes the principles of natural justice, which require that no party be condemned without an opportunity to be heard. It is also averred that no prejudice will be suffered by the Respondent should the application be granted, as any potential prejudice can be compensated through costs. 8.It was further averred that the Respondent is in the process of disposing of the suit premises to a third party, namely Alaya Consultants Limited, to the detriment of the Applicant, who has occupied the suit land since 2009 and has invested significantly to establish a level four medical facility with the Respondent's consent. The Applicant is likely to suffer irreparable and substantial losses, including imminent claims from more than fifty employees currently employed at the facility, should the facility be compelled to close due to the unlawful termination of their employment. 9.For the above reason, the Court was urged to allow the application. 10.The application is opposed by the Respondent, vide her reply affidavit sworn on 5/11/25, on the grounds, namely;a.The application and the appeal are frivolous, vexatious, and an abuse of the process of the Court; they ought to be struck out with costs.b.She is the landlord of the premises and on 30/4/25 she issued the Applicant with a two-month notice to terminate the tenancy, effective 1/5/25 and ending on 1/7/25.c.The grounds for termination of the tenancy were primarily the failure to pay rent when it fell due. On termination, the Applicant was to demolish and reconstruct the entire premises. The Applicant was also to notify the Respondent whether it agreed with the said notice for purposes of compliance under section 4(2) of Cap 301.d.The tenant failed to comply with the mandatory provisions of section 6(1) of Cap 301 that required the Applicant to notify the Respondent of his unwillingness to comply with the notice as a result of which its reference was struck out by the Tribunal.e.That in furtherance of the notice of termination cited above, her counsel wrote to the Applicant's counsel requesting updates on the notice and inspection of the premises, which communication was ignored and remains unanswered to date.f.Based on the lack of objection to the notice to terminate the tenancy, she proceeded to demolish all the structures on the premises, only leaving the space occupied by the tenant who was to vacate by 1/7/25. Allowing the application will highly prejudice her grievance with the provisions of Cap 301.g.That the decision of the Tribunal was a negative order, hence incapable of being stayed in the manner sought by the Applicant.h.The order requiring the Applicant to settle the outstanding rent in the sum of Kshs 134,000/-was proper and in line with the provisions of section 9 (1) (c) of Cap 301 that allows the Tribunal to make such orders as are appropriate. The order to pay rent is therefore justified.i.She conceded that she entered into a lease agreement with a third party, Alaya Consultants Limited [developer], under which she has time-bound obligations, failing which the developer may elect to rescind the lease agreement. One of her obligations is to provide vacant possession.j.That she and the developer have obtained various time-bound approvals for the development of the project on the suit land in the sum of Kshs 4 Million.k.The Applicant should make a deposit of Kshs 10 Million to cover any security for the due performance of such decree to be issued by the Court.l.The Applicant has not demonstrated any substantial loss that it is likely to suffer, warranting the issuance of the stay of execution orders. Further, the appeal does not raise any triable issues, as it does not impugn the Tribunal's dismissal of the reference for failure to comply with section 4(5) of Cap 301.m.That she stands to suffer a loss of Kshs 6 million, being the costs of demolishing all the other premises on the suit land, as a consequence of the Applicant's failure to comply with the provisions of Cap 301. 11.In its further affidavit sworn on 24/11/25, the Applicant denied that it is in rent arrears. 12.On the question of substantial loss, the Applicant submitted that it operates a level three medical facility on the premises and, unless the status quo is maintained, the state of affairs is likely to be irreparably affected and negated. Further, the tenancy notice was based on grounds outside the provisions of Cap 301. 13.The Respondent submitted that the Applicant has not demonstrated any substantial loss; for instance, there is no evidence of loss of investment or of the Respondent’s consent to the developments. In any case, the Tribunal dismissed the reference, so it is a negative order and there is nothing to stay. Furthermore, it was argued that if the Court is inclined to grant the stay orders, the Respondent shall be entitled to security for due performance pursuant to Order 42 Rule 6 (2) (b) in the amount of Kshs 10 million. 14.The legal provisions for stay of execution pending appeal are anchored in Order 42 rule 6 (1) & (2) Civil Procedure Rule that;-(1)No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except 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 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; and(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. 15.The jurisdiction to grant stay lies at the discretion of this Court and is exercised on the basis of sound and settled principles, not arbitrarily or capriciously on a whim or in consideration of any extraneous matters. In the case of Butt v Rent Restriction Tribunal [1982] KLR 417 the Court of Appeal gave guidance on how a Court should exercise discretion in an application for stay of execution and held that: -“1.the power of the Court to grant or refusal an application for a stay of execution is a discretion of power. The discretion should be exercised in such a way as not to prevent an appeal.2.The general principle is granting or refusing a stay is: If there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should that appeal Court reverse the judge’s discretion. (sic) (trial Court judgement).3.A judge should not refuse a stay if there is a good ground for granting it merely because in his opinion a better remedy may be available to the Applicant at the end of the proceedings.4.The Court, in exercising its powers under Order XLII Rule 4(2)(b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to provide security as ordered will cause the order for stay of execution to lapse.” 16.It is averred that the Tribunal made orders as follows;“i).the tenant [Applicant] to vacate the premises on or before the 31/10/25 .ii).In default, the landlady will be at liberty to break in and evict with the assistance of the OCS Riruta Police Stationiii).each party to bear their own costs. “iv).the tenant to settle rent arrears of Kshs 134,000/- by 31/10/25” 17.The Respondent has argued that, because the reference was dismissed, the orders amounted to a negative order, which is incapable of being stayed. It is trite that no stay orders can be issued against a negative order, as there will be nothing to stay. 18.In the instant case, however, I disagree with the Respondent, given that the Tribunal's orders are positive orders. The Respondent has not confirmed that the Applicant moved out. The affidavit evidence is clear that the Applicant is occupying a portion of the suit premises, despite the Respondent's contention that she demolished some of the structures on the land. The two positive orders are the removal of the Applicant and the payment of the outstanding rent. These orders are capable of being stayed. 19.Did the Applicant satisfy the conditions set out in Order 42 rule 6 (2) Civil Procedure Rules above? On the issue of substantial loss, the Applicant has stated that it operates a level-three hospital with a number of staff on the premises and that, unless the orders are issued, it stands to suffer substantial loss. I agree with the Applicant that, given that the Respondent has entered into a lease agreement with the third party, the Applicant will suffer a loss if the demised premises are demolished in compliance with the Respondent's obligations under the lease agreement before the appeal is heard and determined. 20.The application was filed on 29/10/25, about 13 days after the delivery of the ruling, and therefore in time. 21.On the question of security for costs, the Court is of the view that the Applicant be ordered to pay Kshs 350,000/- as security for the due performance of any orders that may be issued by the Court. 22.The Court notes that the parties have addressed the legality of the notice to terminate the tenancy, the subject of the instant appeal. To avoid embarrassing the Court that will determine the appeal, I elect not to delve into it for obvious reasons. 23.The upshot of the foregoing is that the prayer for stay of execution pending appeal is merited. It is allowed on the following terms:a.The Applicant to pay security for costs in the sum of Kshs 350,000/-, to be deposited in Court within 15 days of the date hereof.b.The Applicant is ordered to file and serve the record of appeal within 30 days. In default, the orders issued in a) and/or b) above shall lapse automatically.c.Costs shall be in favour of the Respondent. 24.Orders accordingly. DELIVERED, DATED AND SIGNED AT NAIROBI THIS 3RD DAY OF JUNE 2026 VIA MICROSOFT TEAMS.J G KEMEIJUDGEDelivered Online in the Presence of:Mr. Aencha for the AppellantMr. Otieno for the RespondentCA- Ms. Yvette