https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2992

Shah v Esmail & another (Environment and Land Civil Appeal E130 of 2025) [2026] KEELC 2992 (KLR) (14 May 2026) (Ruling) Neutral citation: [2026] KEELC 2992 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Civil Appeal E130 of 2025 MN Kullow, J May 14, 2026 Between Jitesh Bharat Shah Appellant and Farah Esmail 1st Respondent Nazlin Charania 2nd Respondent (Being an Appeal from the Ruling of Hon. Pamela Achieng (CM) Delivered on 10" July 2025 in Milimani MISC. E008 of 2024) Ruling Introduction 1.The appellant herein being dissatisfied with the ruling of the honourable chief Magistrate in MCELCMISC/E008/2024 filed this appeal. It is on the basis of filing the appeal that he has also filed the application dated 16th July 2025 seeking for stay of execution of the said ruling and order dated 10th July 2025 pending hearing and determination of the appeal 2.The application was supported by an affidavit sworn by the applicant who deponed that he had filed a matter in the rent restriction tribunal and later withdrew the same matter. That the trial court then went ahead to adopt a decree dated 23rd August 2024 that was non-existent being that the matter was no longer in court which decree sought to attach the appellant’s motor vehicle hence this application to stay execution. Respondent’s case 3.The respondent opposed the application by filing a replying affidavit sworn by the 1st respondent dated 27th August 2025. He deponed that the appellant had not filed any proper appeal to warrant stay orders as there was nothing to stay. He deponed that judgement was issued by the tribunal and no appeal was preferred as against the judgement and he went ahead to extract a decree. That the said decree was the one adopted by the lower court for purposes of execution and enforcement.That the averments that the decree was unlawfully obtained is false as it emanated from a valid court judgement and further the withdrawal of the applicant’s suit does not take away rom the fact that there is a valid defense and counterclaim which was a separate matterThat further the appellant had not met the conditions necessary for stay of execution orders being that he had not demonstrated how the execution of a valid court decree would occasion substantial loss.The court directed that the Appeal be canvassed by way of written submissions. The Parties complied and filed their written submissions. The Appellant/Applicant’s submissions are dated 12th March 2026, whereas the Respondent’s submissions are dated 25th November 2025. Applicant’s submissions 4.The applicants’ submissions reiterated the content of his supporting affidavit being that the decree was illegally obtained Respondent’s submissions 5.The respondent submitted that there was no valid appeal to anchor this application for stay and even if there was a valid appeal, the applicant had not met the requirements for stay being that proof of substantial loss, the application having been made without unreasonable time and failure to offer security for the due performance of a decree relying in the cases of Kenya Shell Ltd vs Kibiru & Another(1986)KLR ,and Gianfranco Manenthi & Another -vs- Africa merchant Assurance Co. Ltd [2019] eKLR to emphasize these sentiments Analysis and determination 6.I have considered the application, the replying affidavit, the written submissions and the authorities cited. I find that the only substantial issues for determination are;i.Whether there is a valid appeal on record.It is not disputable that for an appeal from the subordinate court to this court can only be competent if it is filed within thirty days from the date of the decision being appealed. This is a statutory provision which must be adhered to. According to the record, the ruling was delivered on the 10th July 2025and this matter was commenced by way of filing of a memorandum of appeal which was filed on the 18th July 2025 making it within the prescribed 30 day period Order 42 Rule 1 of the Civil Procedure Rules provides that;Every appeal to the High Court shall be in the form of a memorandum of appeal signed in the same manner as a pleading.’Honourable Justice J.R. Karanja also held in SKL -Vs- WKL (2025) KEHC 4546 (KLR) that; ‘A notice of appeal does not constitute the filing or institution of an appeal which ordinarily has to be within a period of thirty [30] days after delivery of a judgment and/or ruling. An appeal is therefore said to be filed and /or instituted upon the filing of a memorandum of appeal setting out the grounds of appeal and the Appellant’s prayers.In this case the appellant is appealing the ruling delivered on the 10th July 2025 and on this front, we can say there is a valid appeal on record. At this juncture the court interprets that there is an appeal challenging a lower court decision and rightfully before the court the merits will be looked at later.Having submitted as above the next issue for determination isii.Whether the appellant has satisfied the requirements as set forth in order 42 rule 6(2) for the grant of stay. The above order states as follows2.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. 7.The first and most important of the requirements is Substantial loss.I rely on the position taken by the court in Machira t/a Machira & Co -vs- East African Standard No.2 (2002) 2 KLR 63 where it was held that:It is not enough merely to state that substantial loss will result, or that the appeal if successful will be rendered nugatory. That will not do. If the applicant cites, as a ground, substantial loss, the kind of loss likely to be sustained must be specified, details or particulars thereof must be given, and the conscience of the court, looking at what will happen unless a suspension or stay is ordered, must be satisfied that such loss will really ensue and that if it comes to pass, the applicant is likely to suffer substantial injury by letting the other party proceed further with what may still be remaining to be done or in execution of an award or decree or order, before disposal of the applicant's business (eg appeal or intended appeal)”In this Application, the Applicant has not pointed out any substantial loss to be occasioned should the ruling not be stayed. Furthermore, in his own pleadings he has indicated that the motor vehicle has already been attached hence execution has already occurred. My finding is that the Applicant has not shown to the satisfaction of the court that he will suffer substantially if stay is not granted. On whether the Application has been brought without unreasonable delay, the ruling was delivered on 10th July 2025 and this application filed on the 16th July 2025. In the court’s view, there is no delay in bringing this Application as it was brought within the required time. On the security to be given, the Applicants have not stated what security they will furnish. Order 42 rule 6 (2) (b) requires the applicant to provide such security as may ultimately be binding upon him. It is my finding that the Applicant has not satisfied all the requirements for the grant of an order of stay of execution. 8.For the reasons above, I make the following order;i.This Application is without merit and is hereby therefore dismissedii.Costs be awarded to the respondentIt is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 14TH DAY OF MAY 2026.MOHAMMED N. KULLOWJUDGERuling delivered in the presence of: -N/A for the AppellantApplicantMr. Ochieng for the RespondentPhilomena W. Court Assistant