https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3737

Mungai v Thoughts and Ideas Company Ltd (Environment and Land Appeal E142 of 2025) [2026] KEELC 3737 (KLR) (11 June 2026) (Ruling) Neutral citation: [2026] KEELC 3737 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Appeal E142 of 2025 JG Kemei, J June 11, 2026 Between Phylis Wanjiku Mungai Applicant and Thoughts and Ideas Company Ltd Respondent Ruling (In respect of the Appellant/ Applicant’s Application dated 25/7/2025) 1.What is before the Court is the Applicant's application dated 25/7/25, seeking an order to stay execution of the BPRT Ruling in E229 of 2024, delivered on 10/7/2025, pending the hearing and determination of the appeal. 2.The application is supported by the grounds annexed and the Applicant's affidavit, sworn on 25/7/2025. The deponent states that the Tribunal ordered the Applicant to vacate the premises at Title No Ngong/Ngong/54102, Ongata Rongai, Kajiado sub-county, within 30 days of the ruling delivered on 10/7/2025. 3.She stated that she has overpaid the rent by Kshs 310,800/-, and the landlord has declined to refund the overpayment. That she submitted the receipts to the Tribunal, but the Tribunal failed to consider them because they were saved under a different name. Unless the orders are granted, she will suffer loss and damage. She has an arguable appeal, and unless orders of stay of execution are issued, the appeal will be rendered nugatory. The Court was urged that the application was filed without delay. 4.The Respondent objects to the application on the basis that the Appellant has not demonstrated any prejudice or loss if the orders are not granted; further, that no security for costs has been provided; the Appellant has not met the criteria for a stay of execution; and the application is unmeritorious and should therefore be dismissed with costs. The written submissions 5.The Court directed that the application be canvassed by way of written submissions. The Court has read and considered the said submissions. Analysis and Determination 6.I have considered the application and the rival affidavits, and the only issue for determination is whether an order for stay of execution can issue against the ruling and consequential orders thereto by the Tribunal delivered on 10/7/25. 7.Stay of execution pending appeal is a discretionary power bestowed upon this Court by the law. The Court of Appeal in the case of Butt –vs- Rent Restriction Tribunal [1982] KLR 417 gave guidance on how a Court should exercise the said discretion and held that:“ 1.The power of the Court to grant or refuse an application for a stay of execution is a discretionary power. The discretion should be exercised in such a way as not to prevent an appeal. 2.The general principle in 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. 3.A Judge should not refuse a stay if there are good grounds for granting it merely because in his opinion, a better remedy may become available to the Applicant at the end of the proceedings.4.In exercising its discretion to grant or refuse an application for a stay, the Court will consider the special circumstances of the case and its unique requirements. In this case, the special circumstances were that a large amount of rent was in dispute and that the Appellant had an undoubted right of appeal.5.The Court in exercising its powers under Order XLI rule 4 (2) (b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security for costs as ordered will cause the order for stay of execution to lapse.” 8.The principles on which a stay of execution pending appeal may be granted are now well settled, as set out in the authorities of this Court and the superior Courts. Generally, a stay of execution is provided for under Order 42 Rule 6(2) of the Civil Procedure Rules. 9.As for the Applicant having to suffer substantial loss, in the case of Kenya Shell Limited –vs- Benjamin Karuga Kigibu & Ruth Wairimu Karuga (1982-1988)KAR 1018 the Court of Appeal pronounced itself to the effect that:“It is usually a good rule to see if Order XLI Rule 4 of the Civil Procedure Rules can be substantiated. If there is no evidence of substantial loss to the Applicant, it would be rendered nugatory by some other event. Substantial loss in its various forms is the cornerstone of both jurisdictions for granting stay.” 10.The Applicants bear the burden of demonstrating the substantial loss they are likely to suffer if no stay is ordered. This recognises that both parties have rights, that is to say, the Appellants to their Appeal, including the prospect that it will not be rendered nugatory; and the decree holder to the fruits of the decree, including the full benefits thereunder. 11.As F. Gikonyo J stated in Geoffrey Muriungi & another v John Rukunga M’imonyo suing as Legal representative of the estate of Kinoti Simon Rukunga (Deceased) [2016] eKLR and which wisdom I am persuaded with; -“…the undisputed purpose of stay pending appeal is to prevent a successful Appellant from becoming a holder of a barren result for reason that he cannot realize the fruits of his success in the appeal. I always refer to that eventuality as ‘’reducing the successful Appellant into a pious explorer in the judicial process’’. The said state of affairs is what is referred to as ‘’substantial loss’’ within the jurisprudence in the High Court, or ‘’rendering the appeal nugatory’’ within the juridical precincts of the Court of Appeal: and that is the loss which is sought to be prevented by an order for stay of execution pending appeal...” 12.Regarding substantial loss, the Applicant states that an eviction order has been issued by the Tribunal and that, unless a stay is granted, she stands to be evicted. She has averred that she overpaid rent to the Respondent by Kshs 310,800/-, which the Respondent is unwilling to refund, and that the Tribunal failed to consider this when arriving at its decision. This has not been controverted by the Respondent. The Court therefore finds that the tenant is at imminent risk of eviction should the orders of stay not be granted. 13.Regarding the second condition, namely whether the Application has been filed without undue delay, the Court notes that the application was filed on 25/7/25, 15 days after the delivery of the decision of the tribunal hence timeously. 14.On provision of security of costs, I find that Order 42 Rule 6 (2) (b) of the Civil Procedure Rules stipulates in mandatory terms that the third condition a party must fulfil to be granted a stay order pending appeal is to furnish security. In the case of Aron C. Sharma vs. Ashana Raikundalia T/A Rairundalia & Co. Advocates & 4 Others (2014) Eklr, the Court held that:“The purpose of the security needed under Order 42 is to guarantee the due performance of such decree or order as may ultimately be binding on the Applicant. It is not to punish the judgment debtor … Civil process is quite different because in civil process the judgment is like a debt hence the Applicants become and are judgment debtors in relation to the Respondent. That is why any security given under Order 42 rule 6 of the Civil Procedure Rules acts as security for due performance of such decree or order as may ultimately be binding on the Applicants. I presume the security must be one which can serve that purpose.” 15.In my view, ordering security for costs, though, within the Court's discretion, which must be exercised judiciously, I find that ordering the Applicant to pay security for costs would unnecessarily overburden her. It is therefore my finding that a security order is not required in this instance. 16.In the circumstances, the appropriate order is to stay execution of the orders dated 10/7/25 pending the hearing and determination of the appeal herein. 17.Final orders for disposalFor the above reasons, I determine the instant application in the following terms: -a.There be stay of execution of the Orders and/or Ruling of the Tribunal by Honourable Mike Makori in BPRT No E1229 of 2024 delivered on 10/7/25 pending the hearing and determination of this Appeal.b.The Applicant is ordered to file and serve the record of appeal within the next 30 days; in default, the orders granted herein shall stand dismissed.c.The costs of this application abide the outcome of the appeal. 18.It is so ordered. DELIVERED, DATED AND SIGNED AT NAIROBI THIS 11TH DAY OF JUNE 2026 VIA MICROSOFT TEAMS.J. G. KEMEIJUDGEDelivered Online in the Presence of:The Appellant present virtuallyMr Nganga Njoroge for the RespondentCA – Ms Kendi