https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5104

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NAIROBI** **ELCLC NO. E252 OF 2026** **HANASHIM INVESTMENT LIMITED.…………….PLAINTIFF/APPLICANT** **VERSUS** **SHAH AND PATEL** **INDUSTRIES LIMITED……..........……….....….1ST DEFENDANT/RESPONDENT** **KNIGHT FRANK (K) LIMITED…..................2ND DEFENDANT/RESPONDENT** **GARAM INVESTMENTS AUCTIONEERS......3RD DEFENDANT/RESPONDENT** **RULING** 1. This matter came up for further directions today when Mr. Horeria, the learned counsel for the plaintiff/applicant informed the court that they filed the notice of motion application dated 14th July, 2026 seeking stay of execution and enforcement of the orders issued on 9th July, 2026. The learned counsel informed the court that the defendants/respondents levied distress for rent arrears on 20th July, 2026. Further, that on 24th July, 2026 the 1st defendant/respondent disconnected water. Subsequently, he wrote an email to Mr. Owino the learned counsel for the 1st defendant/respondent to have the water reconnected but the same was ignored. That on 25th July, 2026, the electricity was disconnected. The learned counsel urged the court to look at the replying affidavit sworn on 23rd July, 2026 by the 1st defendant/respondent. 2. The learned counsel for the plaintiff/applicant argued that the defendants/respondents levied distress for rent together with eviction which is not the purpose of the suit. That as per the orders issued on 9th July, 2026 the defendants could not levy distress for rent. He further informed the court that on 10th July, 2026 they filed a notice of appeal and a further affidavit sworn on 30th July, 2026. He urged the court to issue an order of status quo and an order directing for the reconnection of water and electricity since there is no order for eviction. 3. Mr. Kibet, the learned counsel holding brief for Mr. Owino for the 1st defendant/respondent stated that on 9th July, 2026 the court issued orders directing the plaintiff/applicant to pay the admitted amounts of Kshs.3,700,000/- as rent arrears within 10 days. He submitted that the plaintiff/applicant did not comply with these orders and the status quo orders automatically lapsed on 19th July, 2026 and at that point, the 1st defendant/respondent was at liberty to levy distress pursuant to the proclamation notice dated 29th May, 2026. On this basis, the 3rd defendant/respondent proceeded and proclaimed the goods on the premises on 23rd July, 2026. The learned counsel argued that the notice of motion dated 14th July, 2026 has already been overtaken by events. Further, that there is already a pending appeal against the orders issued on 9th July, 2026 which seeks to review or vary the orders issued on 9th July, 2026. He submitted that under Order 45 of the Civil Procedure Rules, the plaintiff/applicant cannot concurrently pursue appeal and review. Further, that stay orders are equitable reliefs available to a party who approaches the court in equity. 4. He went on to submit that in this case, following the orders issued on 12th June, 2026 which were in place until 19th July, 2026 the plaintiff/applicant paid Kshs.70,000/- only, and such a party cannot be said to be deserving of the orders of status quo. In response to the further affidavit, the learned counsel for the 1st defendant/respondent submitted that they need time to seek instructions to respond to the same. 5. In rejoinder, Mr. Horeria, the learned counsel for the plaintiff/applicant submitted that the appeal filed at the court of appeal was certified urgent. He reiterated that he is seeking stay of execution of 60 days and not review as argued. Secondly, that the amounts the Plaintiff/Applicant was ordered to pay as per the orders issued on 9th July, 2026 are colossal and 10 days is not sufficient for his client to pay the same. The learned counsel admitted that the amounts owed by his client is estimated at Kshs.3,500,000/- and they risk unlawful eviction as per the averments contained in paragraph 17 of the 1st defendant’s/respondent’s replying affidavit. 6. In response thereto, Mr. Kibet, the learned counsel holding brief for Mr. Owino for the 1st defendant/respondent submitted that the application initially filed by the plaintiff/applicant dated 12th June, 2026 sought orders restraining the defendants/respondent from levying distress and the issue of eviction was not in question. He submitted that these are terms guided under the lease executed by the parties. Finally, the learned counsel submitted that under the lease, the landlord has the right to issue notice and eviction. 7. I have considered the rival arguments raised by the respective counsel. A few issues are fit for determination in this ruling namely:- 8. *Compliance with the court orders.* 9. *The application and appeal before the Court of Appeal.* 10. *The nature of the stay of execution orders sought in light of the proclamation notice dated 29th May, 2026.* 11. *Whether the plaintiff/applicant is entitled to the orders sought.* 12. To begin with, I find it necessary to lay the basis culminating in this ruling. The plaintiff/applicant filed the notice of motion dated 12th June, 2026 under a certificate of urgency seeking an order of injunction against the defendants/respondents to restrain them from levying distress, proclaiming, attaching, carting away, selling or evicting the plaintiff/applicant from the suit premises known as unit no. 8 & 9 first floor located within Nairobi Block 35/977, 1st avenue junction. 13. On the same date, this court certified the application as urgent and proceeded to issue orders maintaining status quo prior to the issuance of the proclamation notice. The court further gave orders directing inter partes hearing of the application on 30th June, 2026. On 30th June, 2026 the court issued orders of status quo to be maintained on condition that the plaintiff/applicant pays the admitted amounts of rent owing being Kshs.75,000/-. 14. On 7th July 2026, this matter was before the court, and Mr. Owino, the learned counsel for the 1st defendant/respondent informed the court that he had filed the notice of motion dated 30th June, 2026 seeking for an order of review of the amounts of Kshs.75,000/- payable by the plaintiff/applicant to Kshs.3,779,901/- which is the amount admitted by the plaintiff/applicant. In response thereto, the learned counsel for the plaintiff/applicant stated that his client had complied by paying Kshs.75,000/- on 1st July, 2026. On 9th July, 2026 this court having reviewed the documents ordered the plaintiff/applicant to pay the outstanding amounts of Kshs.3,779,901.23/- being the rent arrears within a period of 10 days. From the record, the plaintiff/applicant did not pay these outstanding rent arrears. Instead, they moved the court of appeal to appeal against the decision of this court. 15. As I understand it, the plaintiff/applicant is now seeking for stay of execution of sixty days pending the appeal before the appellate court. The grounds for grant of orders of stay of execution of decree/judgement are provided for in **Order 42 rule 6(2)** of the [**Civil Procedure Rules**](https://new.kenyalaw.org/akn/ke/act/1924/3) which provide as follows:- ***“No order for stay of execution may be made under sub rule (1) unless-*** 1. ***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.”*** 1. For the plaintiff/applicant to succeed in obtaining stay of execution pending appeal, the onus is upon the said party to prove to the satisfaction of the court that substantial loss will be occasioned to it if the order of stay of execution is not granted. Secondly, the application must be brought without unreasonable delay and thirdly the plaintiff/applicant must give security for the due performance of such decree or order as may ultimately be binding upon it. 2. It is not without a doubt that the application has been brought without delay. The issue is whether substantial loss will be occasioned if the orders are not granted and whether the plaintiff/applicant has security for the due performance of such decree. On whether substantial loss will be occasioned, the plaintiff/applicant has not made any arguments to support these claim except to inform the court that the electricity and water were disconnected. More importantly, is that the plaintiff/applicant did not address the court on security for costs for the due performance of the orders issued. Stay of execution pending appeal is an equitable remedy that is granted to a party who being dissatisfied with the ruling and judgment or order of the court can approach the court for the appropriate relief. In granting the equitable remedy, the court is mindful of the appellant and the respondent who is the successful party. 3. Having evaluated the rival arguments and the affidavits sworn on 17th July 2026, 23rd July 2026, and 30th July 2026, I note that there exists a valid lease agreement between the parties dated 1st April, 2024. The terms of this lease are still binding upon the parties. The plaintiff/applicant is in breach of the lease agreement by failing to pay rent which has now accumulated to more than Kshs.3,700,000/-. This is a fact admitted by the plaintiff/applicant. What substantial loss is to be suffered by the plaintiff/applicant? I find none. In any case, the 1st defendant/respondent has been deprived of legitimate income as a result of the plaintiff/applicant’s failure to pay rent. I also notice that no proposal has been made by the plaintiff/applicant towards repayment of the rent outstanding since the filing of this suit. How is the court required to come to the aid of a party who is keen on using the court process to deny another party its lawful income. 4. In my view, I find that no valid grounds have been raised to enable the court exercise discretion in favour of the plaintiff/applicant. In addition, the 1st defendant/respondent levied distress on 23rd July, 2026 as per paragraph 16, 17 and 18 of its replying affidavit sworn on even date (23rd July, 2026). Even if this court were to consider the same, there will be nothing to stay based on the action taken by the 3rd defendant/respondent to levy distress pursuant to the proclamation notice dated 29th May, 2026. 5. From the above, the court finds that the prayer seeking stay of execution pending appeal is unmerited and it has also been overtaken by events. For clarity, and based on this court’s ruling the notice of motion dated 14th July, 2026 and the notice of motion dated 30th June, 2026 are both spent. The plaintiff/applicant to bear the costs of both applications. It is so ordered. **DATED, SIGNED & DELIVERED VIRTUALLY** **THIS** **31ST DAY OF JULY, 2026.** **HON. MBOGO C.G.** **JUDGE** **31/07/2026.** ***In the presence of:*** *Mr. Thomas Achieng - Court assistant* *Mr. Kimani Horreria for the Plaintiff/Applicant* *Mr. Felix Kibet holding brief for Mr. Owino for the Defendants/Respondents*