https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5173

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT MILIMANI NAIROBI** **ELC APPEAL NO E120 OF 2026** **LILIAN MUYUKA MANDU……..………………….…………. APPELLANT/APPLICANT** **-VERSUS-** **MARIA NJERI ………………….……………….……………….……….1ST RESPONDENT** **PAULINE NDUNGU GATHONI…………….….………………………2ND RESPONDENT** **GEORGE NDUGU………………………………….…….……………...3RD RESPONDENT** **MORAN AUCTIONERS ……………………………..………………….4TH RESPONDENT** **RULING** **Introduction** 1. The matter is coming up for determination of the Appellant’s Notice of motion application dated 15th June 2026 seeking the following orders; 2. **Spent.** 3. **THAT** Pending the hearing and determination of this Application inter partes, the 1st , 2nd 3rd and 4th Respondents, whether by themselves, their servants, agents, employees, auctioneers and/or any person acting under their instructions, be and are hereby restrained from advertising for sale, auctioning, selling, alienating, transferring, disposing of, releasing, removing, parting with possession of, or in any other manner whatsoever dealing with the Appellant's household goods, personal effects and movable property attached pursuant to the orders issued by the Rent Restriction Tribunal (Hon. Jacqueliyn Katee) on 26th May 2026 in Rent Restriction Tribunal Case No. RRC/E679/2026, Maria Njeri vs Lilian Muyuka Mandu. 4. **THAT** The 1st, 2nd, 3rd and 4th Respondents, whether by themselves, their servants, agents, employees, auctioneers and/or any person acting under their instructions, be and are hereby restrained from further harassing, threatening, intimidating or interfering with the Appellant’s quiet possession and enjoyment of the tenancy pending the hearing and determination of this Application. 5. **THAT** Pending the hearing and determination of this Appeal herein, the 1st , 2nd , 3rd and 4th Respondents, whether by themselves, their servants, agents, employees, auctioneers and/or any person acting under their instructions, be and are hereby restrained from advertising for sale, auctioning, selling, alienating, transferring, disposing of, releasing, removing, parting with possession of, or in any other manner whatsoever dealing with the Appellant's household goods, personal effects and movable property attached pursuant to the orders issued by the Rent Restriction Tribunal (Hon. Jacqueliyn Katee) on 26th May 2026 in Rent Restriction Tribunal Case No. RRC/E679/2026, Maria Njeri vs Lilian Muyuka Mandu. 6. The 4th Respondent be compelled forthwith to release and restore to the Appellant all household goods and personal effects seized pursuant to the impugned orders pending the hearing and determination of this Appeal. 7. The application was premised on grounds on the following grounds interalia; 8. That the Appellant had filed an appeal on the tribunal orders issued on 26th May 2026 on the basis that the tribunal failed to consider fundamental issue of law and fact 9. That the Appellant had moved to the tribunal in RRCE652/2026 which matter gave rise to RRC/E821/2026, RRCE679/2026 which were all consolidated and the lead file was left as RRCE652/2026. 10. That despite the said consolidation the 1st Respondent filed an application sought orders under RRC/E679/2026 which orders were granted ex parte and enabled the Respondents to levy distress for rent on the Appellants goods. The Appellant indicates that the said application was not served upon her and she was not given an opportunity to present her case 11. The appeal seeks to challenge the jurisdiction of the court to entertain the application despite the matters having been consolidated and the lead file being different from the one the 1st Respondent approached the court on 12. The 1st Respondent in opposed the application in a replying affidavit sworn on the 19th June 2026.She deponed that the Appellant had approached the court with unclean hands and failed to disclose that she was in arrears of rents prompting the 1st Respondent to file the application of 20th Mya 2026.She deponed that the Applicant was aware of the proceedings and cannot claim that she was not accorded an opportunity to be heard. 13. That further the orders had not been issued fraudulently, irregularly or through any form of misrepresentation as alleged by the Appellant as the tribunal was well vested with jurisdiction to entertain the application. 14. That in as much as the matters had been consolidated to Rent Restriction Tribunal Case No. E652 of 2026 there were no orders staying proceedings in in RRT Case No. E679 of 2026 or prohibiting the Tribunal from entertaining the Application dated 20th May 2026 and hence orders were lawfully obtained 15. The application was canvassed by way of written submissions with the Applicant filing submissions dated 5th March 2026 whereas the 1st Respondent filed submissions dated 10th June 2026. Applicant/Appellant’s submissions 1. The Appellant submitted on the following issues Whether the Applicant had met the threshold for issuance of the orders sought Counsel argued that one of the grounds court looks at before granting stay is arguability of the appeal. It was submitted that they had raised arguable grounds as in the memorandum of appeal warranting stay relying on the case of **Meso Muti Purpose society limited Vs Luore Nyoire company limited & 2 others 2020** Whether the Appellant had demonstrated sufficient cause Counsel indicated that having demonstrated an arguable appeal, then it was necessary to safeguard the substratum of the appeal. That if the orders sought are not granted the Respondents will interfere with the same goods the appeal is anchored on rendering the appeal nugatory relying in the case of S**tanely Kangethe Kinyanjui Vs Tony Keter & 5 others (2013) eKLR** She further submitted that the goods attached are household goods that are used by her family and the loss of the same will not just be monetary but will also affect the dignity of her family and comfort She submitted that the 1st Respondent will not be prejudiced if the orders are granted as the issue on the rent is still before the rent restriction tribunal 1st Respondents ‘submissions 1. The 1st Respondent submitted that the Appellant had not demonstrated arguable grounds in the appeal to warrant stay orders as she had shown any error of principle, misdirection in law or improper exercise of discretion by the tribunal to warrant the appellate court’s interreference. Whether the alleged consolidation of RRT case Nos. E652 of 2026, E679 of 2026 and E821 of 2026 divested the Tribunal of jurisdiction 1. On this issue, the Respondent submitted that consolidation of suits does not extinguish the identity of the individual suits or deprive a court or tribunal of jurisdiction to entertain appropriate interlocutory applications relying in the case of **The Supreme Court in Law Society of Kenya Vs Centre for Human Rights & Democracy & 12 Others [2014] eKLR** The Respondent submitted that the Appellant had cited the tribunal to be in lack of jurisdiction but failed to demonstrate how the Tribunal lacked jurisdiction under the Rent Restriction Act and as such the application was founded on Mere allegations founded upon consolidation orders which do not oust jurisdiction donated by statute. 1. Counsel further submitted that the allegations of the Appellant condemned unheard hence infringement on her right to be heard, were baseless as the application had been brought under certificate and the fact that ex parte orders were issued does not amount to denial of the Appellant’s rights as alleged quoting what was said in **Judicial Service Commission Vs Speaker of the National Assembly & Another [2013] eKLR.** 2. The Respondent further submitted that the Appellant had failed to meet the conditions for issuance of stay of execution orders under Order 42 Rule 6 of the civil procedure rules being proof of substantial loss and injunctive reliefs as in Giella v Cassman Brown & Co. Ltd [1973] EA 358 being the proof of a prima facie case, irreparable harm that cannot be compensated by damages and whether the balance of convenience tilted in their favour. **Analysis and determination** 1. Having looked at the application, the responses thereto, the submissions and cited authorities, the issue for determination will be whether the application for grant of stay of execution is merited but before we delve into the merits of the application the issue of jurisdiction needs to be determined since the Appellant is alleging the tribunal lacked the jurisdiction to determine on RRC/E679/2026 since it had been consolidated with two other matters and that any orders should have emanated from the lead file RRC/E652/2026 that had been listed down for hearing. The Respondent on the other hand argues that there were no stay orders that barred the tribunal from determining on RRC/E679/2026 and in issuing the orders the court was vested with the right jurisdiction. 2. Consolidation of suits was aptly described by the court in **Nyati Security Guards & Services Ltd. Vs. Municipal Council Of Mombasa [2004] eKLR** defined consolidation as follows: *-“Consolidation is a process by which two or more suits or matters are by order of court combined or united and treated as one suit or matter. The main purpose of consolidation is to save costs, time and effort and to make the conduct of several actions more convenient by treating them as one action. The situations in which consolidation can be ordered include where there are two or more suits or matters pending in the same court where:- 1. some common question of law or fact arises in both or all of them; or 2. the rights or relief claimed in them are in respect of, or arise out of the same transaction or series of transactions, or 3. for some other reason it is desirable to make an order for consolidating them.”* 3. It is clear that RRC/E679/2026 was consolidated with RCC/E821/2026 and RRC/E652/2026 as the maters related to the same issues and involving the same parties.It is therefore in error, that the tribunal would give orders when it had already been consolidated with another matters,where there was a lead file .This means that any proceedings and directions in the said consolidation would could only be issued in the lead file being RRC/E652/2026.Am convinced that the 1st Respondent in filing the said application before the tribunal failed to notify it that the matter was part of a consolidated suit. Had the tribunal been in the know, the ex parte orders would not have been issued so as not to embarrass the court as the possibility of conflicting decisions could ensue. In **V Chokaa & Co Advocates Vs Roy Hauliers (Miscellaneous Cause E236 of 2024) [2025] KEELRC 1674 (KLR) (10 June 2025) (Ruling)** the court stated as followsin relations to multiple applications filled in individual suits that form part of a consolidated suit *“The Court notes that the Respondent has been filing application after application in the related files without any synchronisation, and the applications have at one time or the other been placed before different Courts.* *To avoid the possibility of embarrassing outcomes, the Court directs that any future applications, if any, should be filed in this Cause/file, which is now titled Lead File.’’* 1. Having stated as above, I find that the orders of 26th May 2026 were issued erroneously being that the matters were consolidated with a lead file that was not the file on which the application was made and as such I hold that the appeal raised by the Appellant raises arguable grounds warranting for stay orders. 2. Moving on to whether the conditions for stay of execution have been met, the law governing the grant of orders for a stay of execution pending appeal is codified under **Order 42 Rule 6 (1) and 2 of the Civil Procedure Rules.** Sub rule 2 reads; No order for a stay of execution shall 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 2. 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. In **Vishram Ravji Halai Vs. Thornton & Turpin Civil Application No. Nai. 15 of 1990 [1990] KLR 365**,the Court of Appeal held that whereas the Court of Appeal’s power to grant a stay pending appeal is unfettered, the High Court’s jurisdiction to do so under Order 42 rule 6 of the Civil Procedure Rulesis fettered by three conditions namely, establishment of a sufficient cause, satisfaction of substantial loss and the furnishing of security. Further the application must be made without unreasonable delay. To the foregoing I would add that the stay may only be granted for sufficient cause and that the Court in deciding whether or not to grant the stay and that in light of the overriding objective stipulated in sections 1A and 1B of the Civil Procedure Act, the Court is no longer limited to the foregoing provisions. The courts are now enjoined to give effect to the overriding objective in the exercise of its powers under the ***Civil Procedure Act*** or in the interpretation of any of its provisions. According to **Section 1A(2) of the Civil Procedure Act***“the Court shall, in the exercise of its powers under this Act or the interpretation of any of its provisions, seek to give effect to the overriding objective*” while under section 1B some of the aims of the said objective are; the just determination of the proceedings; the efficient disposal of the business of the Court; the efficient use of the available judicial and administrative resources; and the timely disposal of the proceedings, and all other proceedings in the Court, at a cost affordable by the respective parties. 1. It follows therefore that, in order to succeed in an application for stay of execution pending appeal, an Applicant must demonstrate;- (a)That the application has been brought without undue delay; (b)That substantial loss may result unless the order of stay is issued, and ; (c)The Applicant must give security for the due performance of any decree or order that may ultimately be found to be binding on the Applicant. 1. The Appellant has indicated that the goods attached in the proclamation notice are household goods that are used by her family in day to day living by the and should they be sold the family will be subjected to living conditions that would undermine their dignity. 2. It is now settled law that execution of a lawful given decree does not automatically amount to substantial loss. A successful litigant is entitled to enjoy the fruits of his judgment. This principle was aptly stated in **Machira T/A Machira & Co. Advocates Vs East African Standard (No.2) [2002] KLR 63**, where the court observed that:-“*A successful party is entitled to the fruits of his judgment and should not be deprived of the same without just cause.* “However, each case must be determined on its own individual circumstances. The court must balance the right of the successful litigant to enjoy the fruits of judgment against the equally important right of an unsuccessful litigant to pursue an appeal. 3. This was so rightfully quoted in the case of **RWW Vs EKW [2019] eKLR,** where the court stated that “*The purpose of an application for stay of execution pending appeal is to preserve the subject matter in dispute so that the rights of the Appellant who is exercising the undoubted right of appeal are safeguarded and the appeal, if successful, is not rendered nugatory.”* 4. I have considered the parties evidence before this court. The Applicant has demonstrated that execution proceedings have been initiated through auctioneers and that her movable assets are at risk of being disposed of. If the sale proceeds before the intended appeal is heard, the loss to be incurred by the Appellant will be more psychological than monetary as she will have been deprived of part of her livelihood. 5. In my view, the possibility of sale by public auction of the household goods before the appellate process is exhausted constitutes a sufficient basis upon which this court may find that substantial loss has been demonstrated. The Supreme Court in **Gatirau Peter Munya Vs Dickson Mwenda Kithinji & 2 Others [2014] eKLR** observed that preservation orders are intended to safeguard the substratum of litigation pending appellate proceedings. 6. Consequently, I am persuaded that the Appellant has established the likelihood of substantial loss if stay is denied. Having found that the impugned ruling was erroneously arrived I don’t see the need to consider the other two conditions for issuance of stay of execution orders being that the decree was irregulars obtained **Final disposition** Accordingly, I make the following orders; 1. There shall be a stay of execution of the orders issued on 26th May 2026 by Hon Jacqueliyn Katee in the Rent Restriction tribunal in Tribunal case RRC/E679/2026 pending hearing and determination of this Appeal. 2. The 1st 2nd, 3rd and 4th Respondents are hereby restrained from further harassing, threatening, intimidating or interfering with the Appellant’s quiet possession and enjoyment of the tenancy pending hearing and determination of this appeal. 3. That the 4th Respondent is hereby ordered to release to the Appellant all the household goods and personal effects seized pursuant to the orders issued on the 26th May 2026 in Tribunal case RRC/E679/2026 4. Costs of the application shall be in the cause. **It is so ordered.** **DATED**, **SIGNED** and **DELIVERED** virtually at **NAIROBI** on this **6th** day of **August, 2026.** **MOHAMMED N. KULLOW** **JUDGE** **Ruling delivered in the presence of: -** **Mr. Wangaria** for the Appellant **Ms. Kaburu** for the Respondent **Ms. Mwangi** Court Assistant