https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5247

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NAIROBI** **ELC APPEAL NO E119 OF 2026** **REWOT AFRICA COMMUNICATIONS LIMITED….................................... APPELLANT** **-VERSUS-** **TIKOO & COMPANY LIMITED...........................................................1ST RESPONDENT** **VIN AUCTIONEERS.........................................................................2ND RESPONDENT** **RULING** **Introduction** 1. Vide Notice of Motion application dated 15th June 2026 the Applicant/Appellant seeks the following orders: 2. **Spent.** 3. **THAT** pending the hearing and the determination of this Application, this Honourable court be pleased to issue an order that status quo obtaining as at the date of filing be maintained. 4. **THAT** pending the hearing and determination of the Application the Respondents, their servants, agents, and /or auctioneers be restrained from interfering with the Applicant’s possession, occupation and business operation at premises NO 1762/24 on LR 209/1695/2. 5. **THAT** pending the hearing and determination of the Appeal herein there be a stay of execution and/or implementation of any action founded upon or arising from the ruling delivered on 5th May 2026 and posted on 14th June 2026 in MCELC E116/2026. 6. Costs abide the appeal. **Appellant’s case** 1. The application was premised on grounds as in the supporting affidavit of one JOHN KUNYIHA. He deponed that the appeal raised triable issues being that there were pending matters in the lower court which involved the parties herein in which stay of execution against the sale and attachment of the Appellant’s goods had been issued and that the core issues of rent computation and the tenancy rights were still unresolved hence need to stay the orders **Respondent’s case** 1. The 1st Respondent opposed the application by filing a replying affidavit sworn by Heman Heria. He deponed that the Appellant was in continued possession of the 1st Respondent’s premises being in arrears of rent and continuing not to pay rent. That this necessitated the levying of distress for rent which the impunge ruling allowed. 2. He further deponed that there were temporary of stay orders in Mis which application is yet to be determined but indicated that this temporary stay of execution orders should not be the basis on which the Appellant does not pay rents 3. The 2nd Respondent filed a replying affidavit sworn by Vincent Brian Okuku reiterating the contents of the 1st Respondent’s replying affidavit that the Applicant was in arrears hence necessitating the proceedings before the subordinate court. He deposed that the Applicant had failed to meet the conditions necessary for issuance of stay orders 4. The Appellant filed a further affidavit sworn on the 6th July 2026 deponing that the appeal raised triable issues and that the issue raised in the appeal was not about non-payments of rents as indicated in the replying affidavits, but on the quantum and calculation of the rents payments. He deponed that substantial loss had been demonstrated being that the Applicant had consumer loans ,supplier obligations and statutory obligations all which depended on the business and if the stay is not issued the eviction and distress would cause irreparable harm to the Appellant . He deponed that the Appellant was willing to give a security for due performance of a decree as the court. Appellant submissions 1. The Appellant filed submissions dated 8th July 2026 in his submissions relied on of **Oder 42 Rule 6** of the **Civil Procedure Rules**. The Appellant submitted that they had demonstrated substantial loss with the business being incapable to sustain its operations through production of documentary evidence. That the business would loss contracts, loss employess, be unable to service commercial loans and loss of good will. Counsel relied in the case of **Mureithi & Another Vs City council (2004) KLR** 2. That this warranted for the stay of execution and injunctive orders that had been sought after. Counsel went on to rely on to submit the requirements for issuance of injunctive orders pointing to the fact that they had met the requirement of irreparable harm being establishment of a prima facie case as in **Mrao Ltd. Vs First American bank of Kenya.** 1st Respondent’s submissions 1. The Respondent submitted that the Applicant had not challenged any invoices that have been sent to them demanding rent, or offered a clarification of what they allege to have paid or what they are owed by the 1st Respondent. That the Applicant admits to owing rent based on the documents filed in court and insists the issue in controversy is how much rent is due but has not provided any evidence to show what they purportedly indicate to be the correct figures based on what they have paid so far to help in the determination. 2. On the issue of injunctions Counsel submitted that the Appellant had not established a prima facie case nor demonstrated irreparable harm that damages could not compensate and that the balance of convenience tilted in its favour as laid down in **Giella Vs Cassman Brown and Co Ltd 1973 E.A 360.** 2nd Respondent’s submissions 1. The 2nd Respondent submitted that the requirements for issuance of stay orders had not been met being substantial loss, and provision for security for due performance of a decree which were at the core of a stay of execution Application. Counsel also submitted that the 2nd Respondent was merely an auctioneer carrying out lawful court orders and that the Applicant had not demonstrated any justifiable reasons for them not to proceed with execution. **Analysis and Determination.** 1. It is therefore my opinion, having gone through pleadings herein and the submissions by all parties, that the following issues are for determination as raised Whether the Applicant has satisfied the conditions for issuance of injunctive orders 1. It is not disputed that the Appellant is in arrears of rents to the 1st Respondent. What is in dispute is the computation of the figures the Appellant is in arrears I peruses the impugned ruling and do note that the Appellant sought for injunctive orders to restrict the Respondents from attaching the Appellant’s immovable property and selling the same to levy for distress of rent. The said ruling conclusively dealt with the issue of whether the Appellant had satisfied the conditions necessary for issuance of the orders of injunction .The court addressed itself and indicated that the Appellant had not disputed the arrears as at the time, it was required to settle therefore admitting to the same .The court at page 3 indicated that as the many applications that had been filed before, the main issue before it, was whether the Defendants should be restrained from levying for distress. This is still the issue in this current application as the order seek to maintain status quo which status quo is that the Applicants should continue being in possession and running their business, which the movable property of the Appellant was not to be attached in any notice and disposed off. 1. The court pointed out to lack of prima facie case and I will not deviate from the same reasoning as the circumstances of the case have not changed. The Appellant has not brought any new evidence to warrant the court to have a different opinion. The principles applicable in an application for an injunction were laid out in the celebrated case of “Giella (Supra)”, where it was stated: -“ *First an Applicant must show a prima facie case with a probability of success, secondly an interlocutory injunction will not normally be granted unless the Applicant might otherwise Suffer irreparable injury which would not be adequately compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience*.” The three conditions set out in “Giella (supra)”, need all to be present in an application for court to be persuaded to exercise its discretion to grant an order of interlocutory injunction. This was set out by the Court of Appeal in the case of:- **“Nguruman Limited (Supra)”“** These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. 2. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the Applicant is expected to surmount sequentially. In dealing with the first condition of prima facie case, the Honorable Court guided by the definition melted down in **Mrao Limited Vs First American Bank of Kenya Ltd & 2 others [2003] KLR 125,** *“So what is a prima facie case, I would say that in civil cases it is a case in which on the material presented to the court a tribunal properly directing itself would conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter”* 3. On the issue of irreparable harm, the court in its ruling indicated that the goods proclaimed are movable assets which are quantifiable and damages should be able to compensate should it be found the distress was unlawful. 4. Lastly the court pronounced itself that the balance of convenience was in allowing the landlord enjoy the fruits of Its judgement. I hold the view that the issue of injunctions were dealt with a competent court and the matter is still very much active and as such making the application sub judice. 5. Moving on to the other issue that is Whether the Appellant has satisfied the requirements as set forth in order 42 rule 6 for the grant of stay of execution. The above order states as follows 6. *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.* 7. *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.* 8. 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.”* 9. The Applicant bears the burden of showing the substantial loss they are likely to suffer if no stay is ordered. This recognises that both parties have rights; the Appellants to their Appeal, including the prospect that it will not be rendered nugatory; and the decree holder to the decree, including the full benefits under the decree. In balancing the two competing rights, the Court focuses on their reconciliation, which is not a question of discrimination. 10. The Applicant has indicated that if execution occurs and the 2nd Respondent levies for distress for rent, they will suffer irreparable loss by losing the premises, the investment done on the premises and potential litigation from third parties who it has borrowed from. These arguments advanced have not been substantiated with any documentation to would point out to actual loss. As it stands these are mere allegations and the Applicant has failed to establish actual substantial loss. 11. To note there is the established principle 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. In this case there is no substantial loss established, and neither has the Appellant provided security for due performance of a decree and therefore stay of execution cannot issue For the reasons as above, I make the following orders; 1. The Notice of Motion application dated 15th June 2025 is dismissed for lack of merit in its entirety for both orders of injunction and stay of execution. 2. Costs will 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. Makura** for the Appellant/Applicant **Mr. Owiro** for the 1st Respondent **N/A** for the 2nd Respondent **Ms. Mwangi** Court Assistant