https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5232

Mutua v Ephamils Enterprises Limited & another (Environment and Land Appeal E261 of 2025) [2026] KEELC 5232 (KLR) (6 August 2026) (Ruling) Neutral citation: [2026] KEELC 5232 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Appeal E261 of 2025 MN Kullow, J August 6, 2026 Between Judy Wayua Mutua Appellant and Ephamils Enterprises Limited 1st Respondent Ephantus Ndegwa 2nd Respondent Ruling Introduction 1.The matter is coming up for determination of the Applicant/Appellant’s Notice of motion application dated 5th December 2025 seeking the following orders;a.Spent.b.That Pending the hearing and determination of this application, there be a stay of execution of the Ruling and Orders of the Business Premises Rent Tribunal (Hon. Mike Makori, Magistrate) delivered on 10th November 2025 in BPRT Case No. E904 of 2025, and all consequential orders therein.c.That Pending the hearing and determination of the Appeal, there be a stay of execution of the Ruling and Orders of the Business Premises Rent Tribunal (Hon. Mike Makori, Magistrate) delivered on 10th November 2025 in BPRT Case No. E904 of 2025, and all consequential orders therein.d.That Pending the hearing and determination of the Appeal, there be an order of interim injunction restraining the Respondents, their agents, servants or any persons acting under their instructions from evicting the Applicant, locking, interfering with or in any manner dealing with the Applicant’s quiet possession and use of the suit premises known as Shop No. 1 on L.R. No. 209/11430, Nairobi West.e.The Officer Commanding Station, Langata Police Station, be directed to give the Applicant all necessary assistance to enforce the orders of this Honourable Court.f.That the costs of the application be provided for. 2.The Application is supported by the annexed affidavit of Judy Wayua Mutua who deponed that she was dissatisfied with the ruling of the BPRT and has since filed a Memorandum of Appeal and that the Respondent might proceed with the execution of the orders issued on 10th November 2025 which will cause her irreparable harm since it is the source of livelihood to her family business harm and. Furthermore, she is apprehensive that unless the ruling is stayed, the intended appeal will be rendered nugatory 3.The Respondents opposed the application in a replying affidavit sworn by the 2nd Respondent. He deponed that the Applicant was seeking to relitigate on issues that had been addressed by the tribunal. That the issue of the termination notice being irregular had been dealt with and the tribunal expressly found that the Termination Notice dated 30th June fully complied with Sections 4(2), 4(4), 4(5), and 7(1)(g) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301, and that the Landlord’s intention to occupy the premises for business purposes was genuine. 4.He further deponed that the Applicant had not satisfied the conditions for issuance of stay of execution orders under Order 42 Rule 6(2) of the Civil Procedure Rules being no substantial loss had been demonstrated and had neither offered security for due performance of a decree. Neither had the Applicant satisfied issuance of injunctive orders as the tribunal had indicated no prima facie case had been established to prevent the Respondents from recovering possession once the termination notice had been issued 5.The application was canvassed by way of written submissions with the Applicant filing submissions dated 25th May 2026. whereas the Respondents filed submissions dated 2nd June 2026. Applicant/Appellant’s submissions 6.The Appellant submitted that she had met the conditions for stay as in Order 42 Rule 6 of the Civil Procedure Rules. On the issue of substantial loss, she indicated that having been in operation for 11 years, she had built substantial goodwill, established a loyal customer base, and invested in the premises by carrying out improvements and that eviction would destroy what she had used as a means of livelihood relying in the case of Mukuma Vs Abuoga [1988] KECA 107 (KLR)On the issue of security for due performance she indicated that she is still paying rents and this should act as a good enough security 7.She submitted that the appeal will be rendered nugatory if stay orders are not issued as the Respondent will carry out eviction. To butters this argument, she quoted the cases of RWW Vs EKW [2019] eKLR, and Stanley Kangethe Kinyanjui Vs Tony Ketter & 5 others [2013] KECA 378 (KLR) operate a restaurant relying on the definition of substantial loss as in the case of James Wangalwa & Another Vs Agnes Naliaka Cheseto [2012] eKLR.Counsel further submitted that the Respondents will suffer no prejudice if the status quo is maintained as she is still paying rents to them. Respondents ‘submissions 8.Counsel submitted on the provisions of Order 42 Rule 6(2) of the Civil Procedure Rules. He indicated that the Applicant was to demonstrate substantial loss which they had not and that their argument that the Applicant will suffer irreparable loss were mere allegations as the execution of the tribunal orders does not amount to loss. He submitted that no security had been given for due performance of a decree.He further submitted that the appeal would not be rendered nugatory as the Applicant had not demonstrated how it would be impossible to give the appropriate reliefs should the appeal succeed. 9.On the issue of the appeal being arguable, counsel reiterate the contents of his replying affidavit that the issues raised had bene determined by the tribunal being issues of validity of the termination notice and the reason for the Respondent’s intention to occupy the premises bona fide. This he argued made the application an abuse of th court process since a decision had already been rendered. Analysis and determination 10.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. 11.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—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; andb.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.Substantial loss is the cornerstone of an application for stay. In Kenya Shell Limited Vs Benjamin Karuga Kibiru & another [1986] KECA 94 (KLR), the Court of Appeal held that: -“If there is no evidence of substantial loss to the Applicant, it would be a rare case when an appeal would be rendered nugatory by some other event. Substantial loss in its various forms, is the corner stone of both jurisdictions for granting a stay. That is what has to be prevented. Therefore, without this evidence it is difficult to see why the Respondents should be kept out of their money.” 13.The Applicant bears the burden of showing the substantial loss she is likely to suffer if no stay is ordered. Regarding substantial loss, it is not disputed that the Applicant has a business operating in the suit premises that she stands to lose goodwill if she is evicted from the premises. The Respondents on the other hand contend that the loss of goodwill as alleged can be compensated by way of monetary damages. I agree with the Respondents that the Applicant has failed to show that the loss of goodwill and business cannot be quantified in monetary terms. There is no gainsaying that loss of business and goodwill, are capable of being quantified in monetary terms, that if duly quantifiable and pleaded, the same are equally payable in monetary terms. Other than the foregoing, it is also worthy to outline that the Respondents herein shall be in a position to pay whatever damages subject to proof. For good measure, the Applicant has not pleaded to impugn the financial capability of the Respondents to meet damages/compensation, if any; that may be due and awardable in the event the appeal succeeds. 14.On security, Order 42 Rule 6(2)(b) of the Civil Procedure Rules is couched in mandatory terms. In Focin Motorcycle Co. Limited Vs Ann Wambui Wangui & another [2018] KEHC 8358 (KLR), the court held that: -“In Arun C Sharma -V- Ashana Raikundalia T/A Rairundalia & Co. Advocates Justice Gikonyo the Court stated 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’’The Applicant has not offered security for sue performance of a decree and willingness to pay rent does not amount to securityOn delay, the ruling was delivered on 10th November 2025 and the application filed on 5th December 2025. This court is satisfied that the application was filed without unreasonable delay. Filing an application timeously without fulfilling the other conditions as to whether an Applicant will suffer substantial loss or offering security for the due performance of the decree, does not give the Applicant a free ticket to obtaining the order of stay of execution.In Carter & Sons Ltd Vs Deposit Protection Fund Board & 2 Others Civil Appeal No. 291 of 1997, the court held as follows: “the mere fact that there are strong grounds of appeal would not, in itself, justify an order for stay. . .the Applicant must establish a sufficient cause; secondly the court must be satisfied that substantial loss would ensue from a refusal to grant a stay; and thirdly the Applicant must furnish security, and the application must, of course, be made without unreasonable delay. 15.The Applicant has not persuaded the court that she will suffer substantial loss if an order of stay of execution is not granted. She has further not demonstrated the loss that she will suffer if the order is not granted. Mere assertions of substantial loss is not enough as there has to be documentary evidence to support such a claims. 16.For the reasons and analysis, which have been outlined in the body of the ruling, I come to the conclusion that the application dated the 5th December 2025 lacks merit and is hereby dismissed. The Costs will be in the main cause.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 6TH DAY OF AUGUST, 2026.MOHAMMED N. KULLOWJUDGERuling delivered in the presence of: -Mr. Ngure for the Appellant/ApplicantN/A for the RespondentMs. Mwangi Court Assistant