https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5043

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT THIKA** **ELC CIVIL APPEAL NO. E159 OF 2025** **CATHERINE MUNJIRU MURIU** **………...….…… APPELLANT/ APPLICANT** **VERSUS** **PETER GITIHA GITAU ……..…………...….………………..…….. RESPONDENT** **RULING** **1. Before this Court is the Applicant's Notice of Motion dated 30th December 2025. The application seeks, principally, an order for stay of execution of the ruling delivered by the Business Premises Rent Tribunal in Thika BPRT No. E007 of 2025, together with all consequential orders arising therefrom, pending the hearing and determination of this application and the intended appeal.** **2. The application is premised on the grounds on the face of it and the supporting affidavit of** Catherine Munjiru Muriu sworn on even date. 3. The Applicant contends that the intended appeal is arguable and raises serious questions of law and fact deserving the consideration of this Court. It is further deposed that unless an order of stay is granted, the Applicant stands to suffer substantial loss, as the execution of the impugned ruling would render the intended appeal nugatory. 4. The Applicant further avers that the application has been brought without unreasonable delay and expresses willingness to abide by such terms as this Court may impose with regard to security for the due performance of the decree. **5. The application is opposed. In the replying affidavit of** Peter Gitiha Gitau **sworn on 27th February 2026, the Respondent contends that the Applicant has failed to satisfy the conditions for the grant of stay under Order 42 Rule 6 of the Civil Procedure Rules.** **6. The Respondent asserts that the Applicant has not demonstrated any substantial loss, that the intended appeal lacks merit, and that the Respondent would be unjustly deprived of the fruits of a lawful decision if the orders sought were granted.** **7. In accordance with the directions of the court, the application was canvassed by way of written submissions.** **8. Having considered the application, the replying affidavit in response thereto, the filed submissions and the relevant authorities, the key issue that emerges for determination is: *whether*** *the Applicant shown sufficient cause to warrant a stay of execution pending appeal?* **Analysis and Determination** 9. A judgment is meant to be obeyed. An appeal does not, by itself, suspend its operation. Were the position otherwise, every unsuccessful litigant would obtain a stay simply by filing an appeal. The law therefore entrusts the Court with a discretion to grant a stay, but only where the Applicant satisfies the conditions prescribed by Order 42 Rule 6 of the Civil Procedure Rules. 10. Order 42 Rule 6(1) of the Civil Procedure Rules provides: *“(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.”* 11. Order 42 Rule 6(2) of the Civil Procedure Rules further provides: *“(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.”* **12. The Rule prescribes the conditions that an applicant must satisfy before an order of stay may issue. The applicant must demonstrate that substantial loss may result unless the order is granted; that the application has been brought without unreasonable delay; and that such security as the Court may order has been furnished for the due performance of the decree or order ultimately binding upon it.** **13. The Court's discretion is informed by the need to hold in careful equilibrium two competing rights. The first is the Applicant's right to pursue an appeal that is is not rendered nugatory by premature execution. The second is the Respondent's equally legitimate entitlement to the fruits of a judgment lawfully obtained. Neither interest enjoys automatic precedence over the other. The Court's task is to reconcile them in a manner that accords with the statutory framework and the interests of justice.** **14. It is against that backdrop that the Court of Appeal in Butt v Rent Restriction Tribunal [1979] observed that the discretion to grant or refuse a stay must be exercised in a manner that does not prevent an appeal, while recognising that the discretion is ultimately one to be exercised judicially and on the facts of each case.** **15. T**he Court must now determine whether, on the material placed before it, the Applicant has satisfied the cumulative requirements of Order 42 Rule 6(2) of the Civil Procedure Rules so as to warrant the exercise of the Court's discretion. 16. I begin with the question of substantial loss. **17. The Applicant's apprehension is not merely that execution will proceed, but that it will leave behind an empty victory. It is contended that once the Respondent vacates the premises, the outstanding rent arrears may prove irrecoverable. That apprehension is said to be reinforced by the Respondent's history of persistent rent default, with the result that execution at this stage would reduce the intended appeal to little more than a hollow exercise.** **18. In my view, the apprehension expressed is not founded on mere conjecture. If the Respondent vacates the premises without settling the alleged arrears, the Applicant's ability to recover those sums may indeed be substantially impaired. The prejudice apprehended therefore transcends the ordinary consequences of execution and, in the particular circumstances of this case, is sufficient to establish substantial loss.** **19. Regarding timeliness, the Applicant filed the instant application with reasonable promptitude, and no question of inordinate delay arises.** **20. The Respondent's interests must nonetheless be protected. A deposit of Kshs. 40,000 will, in my view, furnish adequate security while preserving the Applicant's right of appeal.** **21. The scales of justice, in the circumstances of this case, tilt in favour of preserving the subject matter pending appeal. A conditional stay best reconciles the Applicant's right of appeal with the Respondent's entitlement to the fruits of its judgment.** **22. Accordingly, the Notice of Motion application dated 30th December 2025 is allowed but on terms.** There shall be a stay of execution of the ruling delivered on 9th December 2025 in Thika BPRT No. E007 of 2025 pending the hearing and determination of the intended appeal. The stay shall take effect on condition that the Applicant deposits Kshs. 40,000/- as security within thirty (30) days of the date of this ruling, failing which it shall stand discharged without further orders. 23. The costs of this application shall abide the outcome of the appeal **Dated, signed and delivered virtually at Malindi this 28th day of July 2026.** …………………….. **J. M. ONYANGO** **JUDGE** **In the presence of:** Mr Kungu for the Appellant/ Applicant Mr Murimi for the Respondent Court Assistant: Sifa