https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2993

General Pack Limited & 2 others v L.P Holdings (Environment and Land Civil Appeal E020 of 2026) [2026] KEELC 2993 (KLR) (14 May 2026) (Ruling) Neutral citation: [2026] KEELC 2993 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Civil Appeal E020 of 2026 MN Kullow, J May 14, 2026 Between General Pack Limited 1st Applicant Midway Butchery Limited 2nd Applicant Valley Vegetable Market Limited 3rd Applicant and L.P Holdings Respondent (Being an Appeal against the Judgment of Hon P. Kitur delivered on 15th January 2026 in BPRT No. E728N consolidated with E729 and E730 of 2020) Ruling Introduction 1.Vide a References filed at the Business Premises Rent Tribunal (BPRT), the applicants herein opposed a notice of termination of tenancy served upon them by the respondent herein in respect of the shops situated on LR NO Nairobi/Block 15/360 and LR No Nairobi/Block 15/438.The judgement of theTribunal was delivered by Hon. P. Kitur on 15th January 2026 disallowing the references and upholding the respondent’s notice of termination 2.Being dissatisfied with the decision of the Tribunal, the Applicants appealed against the whole judgment vide a Memorandum of Appeal dated 12th February 2026 and went ahead to file an application dated an even date seeking for the stay of execution of the judgement pending hearing and determination of the appeal. Applicant’s case 3.The application was supported by an affidavit sworn by the Lawrence Sila who deponed that the said judgement had increased the rent payable to all the tenants and it was meant to take effect as soon as possible which would be before the determination of the appeal and if the stay pending appeal is not granted, they stand to suffer substantial loss hence this application Respondent’s case 4.The respondent opposed the application by filing a replying affidavit sworn by Abraham Munene dated 2nd March 2026. He deponed that the grounds raised that the appeal was arguable was not a valid ground as captured under order 42 rule 6(2) for grant of stay of execution orders. 5.That the applicant had not demonstrated how substantial loss will be occasioned to them as the rental increment was a valid order of the court which ought to be executed for the respondent to enjoy the fruits of his judgementThe court directed that the Appeal be canvassed by way of written submissions. The Parties complied and filed their written submissions. The Applicant’s submissions are dated 11th March, 2026. TheRespondent’s submissions are dated 17th March 2026 Applicant’s submissions 6.The applicants’ submissions relied on the provisions of Order 22 Rule 22 of the Civil Procedure Rules and Order 42 rule 6 of the Civil procedure rules indicating that they had demonstrated that substantial loss will be occasioned to them should the orders of stay not issue .They relied in the case o Antoine Ndiaye v African Virtual University [2015] eKLR, where the court emphasized the necessity of stay to prevent irreparable harm and protect the right of appeal. Respondent’s submissions 7.The respondent submitted that proof of substantial loss is at the root of courts granting prayers for stay of execution. That the applicants were merely stating that they will suffer substantial loss abut had not demonstrated how payment of rents would amount to substantial loss relying on the case of Kenya Shell Limited v Benjamin Karuga Kibiru & another [1986] KECA 94 (KLR) where the court stated that substantial loss ought to be specifically pleaded and not just mere statements. 8.Counsel submitted that the applicants are not entitled to any further stay of execution orders as the tribunal had granted them 30 days to be able to adjust to the new rent rates and pay but had failed to do so Analysis and determination 9.I have considered the application, the replying affidavit, the written submissions and the authorities cited. I find that the only substantial issue for determination is;Whether the appellant has satisfied the requirements as set forth in order 42 rule 6(2) for the grant of stay. The above order states as follows2.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. 10.The first and most important of the requirements is Substantial loss.I rely on the position taken by the court in Machira t/a Machira & Co v. East African Standard No.2 (2002) 2 KLR 63 where it was held that:“It is not enough merely to state that substantial loss will result, or that the appeal if successful will be rendered nugatory. That will not do. If the applicant cites, as a ground, substantial loss, the kind of loss likely to be sustained must be specified, details or particulars thereof must be given, and the conscience of the court, looking at what will happen unless a suspension or stay isordered, must be satisfied that such loss will really ensue and that if it comes to pass, the applicant is likely to suffer substantial injury by letting the other party proceed further with what may still be remaining to be done or in execution of an award or decree or order, before disposal of the applicant's business (eg appeal or intended appeal)”In this Application, the Applicants allude to fact that if they are compelled to pay the Respondent the rental increase before the hearing and determination of the appeal, they are bound to suffer if the order of stay of execution is not granted. However, they have not specifically pointed out the loss that will be occasioned. My finding is that the Applicants have not shown to the satisfaction of the court that they will suffer substantially if stay is not granted. On whether the Application has been brought without unreasonable delay, Judgment was delivered on 15th January 2026 and this application filed on the 12th February 2026. In the court’s view, there is no delay in bringing this Application as it was brought within the required time. On the security to be given, the Applicants have not stated what security they will furnish. Order 42 rule 6 (2) (b) requires the applicant to provide such security as may ultimately be binding upon him. It is my finding that the Applicants have not satisfied all the requirements for the grant of an order of stay of executionFor the reasons as above, I make the following order;i.This Application is without merit and is hereby dismissed.ii.Costs be awarded to the Respondent.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: -Mr. Okullo for the ApplicantMr. Lurdi for the RespondentPhilomena W . Court Assistant