https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3833

Stanhope Engineers Ltd & another v Estate of Guandai & another (Environment and Land Appeal E177 of 2025) [2026] KEELC 3833 (KLR) (18 June 2026) (Ruling) Neutral citation: [2026] KEELC 3833 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Appeal E177 of 2025 JG Kemei, J June 18, 2026 Between Stanhope Engineers Limited 1st Appellant Ephamils Enterprises Limited 2nd Appellant and The Estate of Karugu Guandai 1st Respondent Mary Njeri Mburu 2nd Respondent Ruling (In respect of the Appellants’ application dated 9/9/2025) 1.By a Notice of Motion dated 9/9/2025 the Appellants moved this Court under Order 40 Rule 6 and 7, Order 42 Rule 6 and Order 51 of the Civil Procedure Rules. They pray in the main for orders that: -a.This Honourable Court be pleased to issue an order of stay of execution of the ruling and orders of the Business Premises Rent Tribunal delivered on 24/4/2025 and 28/8/2025 in BPRT Case No. E1366 of 2024, pending the hearing and determination of this appeal.b.The cost of this application be borne by the Respondents. 2.The application is based on the grounds set out on the face of it and is supported by the affidavit of Duncan Ndiritu Wamae, the 1st Appellant herein, sworn on the same date. The deponent avers that the Appellants, dissatisfied with the rulings of the Landlord and Tenant Tribunal delivered on 24/4/2025 and 28/8/2025, have preferred the present appeal pursuant to Section 15 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301, Laws of Kenya. He further avers that the Appellants have filed a Memorandum of Appeal grounded on several grounds, including that the learned Tribunal Chair erred in fact and law by dismissing their application dated 13/5/2025 with costs, despite the Appellants having consistently paid rent and adducing certified bank and M-Pesa statements in proof thereof. They further fault the Tribunal for relying on the Respondents’ rent account statements, which contained a double accounting error, erroneously suggesting that the 1st Appellant occupied two plots, namely LR No. 209/11430 and LR No. 209/11431, whereas the 1st Appellant is only in occupation of LR No. 209/11431. Additionally, they contend that the Tribunal failed to find that no valid notice of rent increment had been issued in accordance with Section 4(2) of Cap 301, and that the impugned rulings would unlawfully evict the Appellants despite their full and regular payment of rent, thereby occasioning grave injustice and financial loss. 3.The deponent avers that the Appellants fear the Respondents may act on the said rulings and evict them, yet at the time of delivery of the rulings, all rent due had been paid. The Appellants contend that the Tribunal’s denial of injunctive relief was based on the ground that the 1st Appellant lacked legal capacity as the head tenant. That issue, however, was substantively addressed in the Further Supporting Affidavit sworn on 14/6/2025. It was further averred that, in any case, the Respondents had not raised the issue of capacity, which had never been contested in other proceedings between the same parties. Moreover, it was averred that the 2nd Appellant had duly authorised the 1st Appellant to act on its behalf in the matter. The Appellants maintain that the Tribunal’s focus on capacity was misplaced, as the core dispute before the Tribunal was rent arrears, which the Appellants demonstrated through current rent account reconciliations backed by certified bank and M-Pesa statements. 4.The Appellants further assert that they raised the issue of a double-counting error by the Respondents, as the Appellants are not in occupation of two plots. This issue was also canvassed in the review application, where the Appellants produced evidence demonstrating the existence of three distinct properties. The Tribunal, however, failed to consider and analyse this evidence, thereby reaching an erroneous conclusion. The Appellants contend that the Tribunal’s failure to interrogate the evidence on record, coupled with its reliance on the Respondents’ erroneous account statements, resulted in a miscarriage of justice. 5.The deponent avers that, if the orders for a stay of execution are not issued, the intended appeal will be rendered nugatory and the Appellants will suffer irreparable financial loss and injustice. The Respondents may evict them from a property they have occupied and continuously rented for over a decade, despite the Respondents' contention of rent arrears on a separate plot not in their use. The Appellants assert that the application was brought timeously and that the appeal has substantial prospects of success, as demonstrated in the Memorandum of Appeal. It is therefore in the interests of justice that the orders sought be granted to preserve the subject matter of the suit pending the determination of the appeal. The Respondents’ Replying Affidavit 6.The Respondents opposed the application by the Replying Affidavit dated 16/10/2025, sworn by the 2nd Respondent, the personal representative of the estate of Karugu Guandai (deceased). She deposes that she has been in continuous management of the rented premises since inception, collecting rent on behalf of the deceased during his lifetime and thereafter for his estate. She asserts personal knowledge of the matters in dispute and contests the factual accuracy of the Applicant’s averments, particularly regarding the procedural history and the legal capacity of Duncan Ndiritu Wamae. 7.It is the Respondents’ position that the Reference dated 10/12/2024 was filed by Duncan Ndiritu Wamae in his personal capacity, without any apparent authority to represent the named corporate Appellants/Applicants. She notes that the related application dated 5/12/2024 predates the Reference and was filed by entities that were not parties to the proceedings. She further contends that Wamae is a director of the 1st Appellant but is a stranger to the 2nd Appellant, a subtenant, and that no prior authority to represent that company was filed with the Tribunal. She therefore argues that both the application and the ensuing appeal are incompetent and founded on a fundamental legal irregularity. 8.The deponent further avers that the Applicants’ application for review dated 3/5/2025 introduced new factual matters, including an alleged authority to represent the 2nd Appellant and tenancy agreements with subtenants. She maintains that the Tribunal correctly dismissed the review application on 8/12/2025, having found that the deponent’s legal capacity remained unresolved. She also denies the Applicant’s claim of no rent arrears, providing detailed statements showing outstanding sums of Kshs. 510,000, Kshs. 520,000 and Kshs. 1,158,000 in respect of the various plots. She adds that the Applicant has not surrendered the premises and continues to enjoy a stay order granted in separate proceedings (ELCA E132/2024), thereby aggravating the accruing rent debt. 9.The Respondents further assert that the Applicant has failed to satisfy the conditions for the grant of a stay, as no security for costs has been offered and no merit has been demonstrated in the appeal. She contends that the appeal is an abuse of the Court process, as the Applicant did not appeal the ruling of 24/4/2025 but instead sought a review, and cannot now appeal a ruling that has already been reviewed. She therefore prays that the application be dismissed with costs. Directions on submissions 10.The Court directed the parties to file their submissions, which they did. The Appellant’s submissions are dated 27/11/2025, whereas the Respondents’ submissions are dated 26/11/2025 and 22/12/2025. The Court has read and duly considered the submissions in its analysis and determination. Analysis and Determination 11.Having considered the application, the affidavit in support, the response thereto as well as the rival submissions. In my considered view, the issues for determination are;a.Whether there is a competent appeal before this Court.b.Whether the prayer for stay of execution pending hearing and determination of the Appeal is merited.c.Who should bear the costs of the application. Whether there is a competent appeal before this Court. 12.Section 79G of the Civil Procedure Act provides that an Appeal should be filed within 30 days of the date of Judgement. However, the proviso to the said Section provides that the Court may grant leave or an extension of time to file an Appeal out of time, but the delay must be explained. The above section states as follows:“79G. Time for filing appeals from subordinate CourtsEvery appeal from a subordinate Court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower Court may certify as having been requisite for the preparation and delivery to the Appellant of a copy of the decree or order:Provided that an appeal may be admitted out of time if the Appellant satisfies the Court that he had good and sufficient cause for not filing the appeal in time.” 13.Section 16A of the Environment and Land Court Act mirrors Section 79G of the Civil Procedure Act, which sets out the statutory 30-day period within which an aggrieved party may appeal to the Environment and Land Court. 14.On the other hand, Section 80 of the Civil Procedure Act authorises the Court to order a review, whereas Order 45 Rule 1 of the Civil Procedure Rules sets out the jurisdiction and scope of review, limiting it to the discovery of new and important matters or evidence, a mistake or error on the face of the record, and any other sufficient reason. 15.The Appellants filed a Memorandum of Appeal dated 9/9/2025 on 10/9/2025. In the description of the appeal, the Appellants indicate that it is an appeal against the orders and the entire rulings of the Honourable Gad Chemoiyai, which were delivered on 28/8/2025 and 24/4/2025 at the Tribunal. In the body, the Appellants aver that they are aggrieved by the Tribunal's decision delivered on 28/8/2025 and set out the grounds of appeal. 16.On the face of it, it is unclear whether the Appellants are appealing against both orders or only the order dated 28/8/2025. However, the affidavit in support of the application and the written submissions thereto make it clear that the Appellants are dissatisfied with the Tribunal's rulings delivered on 24/4/2025 and 28/8/2025, hence the instant appeal. Therefore, there is no doubt that the Appellants are appealing against both orders. The Court will therefore address the competency of the appeal in respect of each order. 17.The Tribunal's first and principal Ruling in respect of the dispute herein was delivered on 24/4/2025. The Appellants thereafter filed an application for review dated 3/5/2025. That application resulted in the Tribunal's Ruling of 28/8/2025. 18.The Court of Appeal in the case of Sunrise Hauliers Limited versus Motaroki (Appeal E019 of 2023) [2024] KEELRC 631 (KLR) held as follows:“ 51.The other grounds of appeal number 4 and 5 relate to issues raised by the Applicant in its application for review before the Trial Magistrate. As rightly held by the Respondent, where a party files for review, the same party has no legal basis to file an appeal based on the very same grounds raised in the Review as cited in Gab International Construction Co. Ltd –vs- Zachary Kabucho Ndungu [2023] KEHC 17549 (KLR)” (emphasis is added) 19.In the above cited case of Gab International Construction Co. Ltd versus Zachary Kabucho Ndungu, the Court held:“I believe I have said enough to demonstrate that the Appellant’s appeal is destined to fail for the reasons that I have outlined above. The application for a review operated against the trial Court’s ruling on an earlier application meant that the Appellant had opted not to appeal against the ruling in issue, as it could not apply for a review and at the same time appeal against the same order. I take cognizance of the fact that the Appellant was for all the time represented by counsel and must therefore have exercised its options consciously. As the Appellant had exercised its option to lodge a review then it cannot again turn around and mount an appeal aimed at achieving the same result that had been sought before the trial Court. This is unacceptable and hence the appeal is an abuse of the Court process.” 20.Further Odunga, J. (as he then was) in HA –vs- LB [2022] eKLR held that:“13.In this case, the Appellant having sought to review the order made on 27/05/2021 cannot now purport to appeal against the same. He can only appeal against the decision made on 4/11/2021.” 21.I agree with the findings in the authorities cited above. A party who seeks review cannot appeal on the same grounds. The Appellants, having sought review of the orders dated 24/4/2025, cannot then purport to file an appeal against those very orders. In any case, the Memorandum of Appeal was filed about 4 months and 2 weeks after the 24/4/2025 ruling, without leave of Court, thereby contravening Section 79 of the Civil Procedure Act, which requires an appeal from the Tribunal to this Court to be filed within 30 days. The appeal would be incompetent either way. 22.It is therefore my finding that the appeal against the ruling of 24/4/2025 is an abuse of the Court process and is hereby struck out. 23.Turning to the Ruling of 28/8/2025, the Memorandum of Appeal was filed on 10/9/2025, that is, the twelfth (12th) day after the delivery of the Ruling. The application was therefore within the statutory 30-day period. The appeal in respect of the Ruling of 28/8/2025 is therefore competent. I take this appeal to be strictly limited to the Ruling of 28/8/2025. Whether this Court should grant stay of execution of the Ruling and/or order of 28/8/2025 as prayed for. 24.Stay of execution is provided under Order 42 Rule 6 of the Civil Procedure Rules 2010 as follows;“(1)No appeal or second appeal shall operate as a stay of execution or proceeding 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.(2)No order for 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; 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.” 25.The three conditions to be fulfilled can therefore be summarized as follows;a.that substantial loss may result to the applicant unless the order is madeb.application has been made without unreasonable delayc.security as the Court orders for the due performance 26.These principles were enunciated in Butt -vs- Rent Restriction Tribunal [1979] the Court of Appeal stated what ought to be considered in determining whether to grant or refuse stay of execution pending appeal. The Court said that: -a.The power of the Court to grant or refuse an application for a stay of execution is discretionary; and the discretion should be exercised in such a way as not to prevent an appeal.b.Secondly, 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 the appeal Court reverse the judge’s discretion.c.Thirdly, 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.d.Finally, the Court in exercising its discretion whether to grant or refuse an application for stay will consider the special circumstances and its unique requirements. 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 of costs as ordered will cause the order for stay of execution to lapse. 27.In RWW -vs- EKW [2019] eKLR, the Court addressed its mind to the purpose of an order for stay of execution pending appeal. In so doing, it stated as follows:“The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the Appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. However, in doing so, the Court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The Court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs.”Indeed, to grant or refuse an application for stay of execution pending appeal is discretionary. The Court when granting the stay however must balance the interests of the Appellant with those of the Respondent.” 28.It is clear that the Tribunal, in its Ruling, dismissed the Appellant’s application dated 13/5/2025 for review. The Ruling was a negative finding and did not require any of the other parties to take a positive act in order to act upon the Court order. Courts have held time and again that an application for a stay of execution is normally entertained only when what is intended to be stayed is a positive order requiring the positive action of another. In the present case, there would be nothing to stay, since a dismissal of an application does not impose any positive obligation on another. 29.In the case of Kenya Commercial Bank Limited v Tamarind Meadows Limited & 7 Ors [2016] eKLR, cited its decision in Kanwal Sarjit Singh Dhiman v. Keshavji Juvraj Shah [2008] eKLR and expounded on stay of execution of negative stating:“The 2nd prayer in the application is for stay (of execution) of the order of the superior Court made on 18th December, 2006. The order of 18th December, 2006 merely dismissed the application for setting aside the judgment with costs. By the order, the superior Court did not order any of the parties to do anything or refrain from doing anything or to pay any sum. It was thus, a negative order which is incapable of execution save in respect of costs only (see Western College of Arts & Applied Sciences vs. Oranga & Others [1976] KLR 63 at page 66 paragraph C).” 30.In the persuasive case of Beatrice Kariuko Muriithi –vs- Peter Karani Wanjau [2020] eKLR where the Court, in dismissing an application for stay of execution where the Ruling intended to be appealed against was one dismissing an application held as follows: -“The dismissal of an application is a negative order. It was an order incapable of execution. In the case of Milkah Jeruto –vs- Fina Bank Ltd (2013) eKLR, the Court held that an order for stay cannot be granted where a negative order had been issued. Section 2 of the Civil Procedure Act defines a decree holder as the holder of an order/decree that was capable of being executed.” 31.For the reasons set out above, this Court finds no basis to entertain, let alone grant, the merits of the Applicant’s application for a stay. The Court lacks jurisdiction to stay a negative order, such as the Tribunal’s order dated 13/5/2025 dismissing the Applicant’s application. 32.Final orders for disposala.The upshot of this is that the Appellants’ application dated 9/9/2025 is not merited.b.The appeal against the Ruling of 24/4/2025 is incompetent. It is struck out.c.It is hereby dismissed with costs to the Respondents. 33.It is so ordered. DELIVERED, DATED AND SIGNED AT NAIROBI THIS 18TH DAY OF JUNE 2026 VIA MICROSOFT TEAMS.J. G. KEMEIJUDGEDelivered Online in the presence of:1. Mr. Thuo for the Appellants2. N/A for the Respondents3. C/A – Ms Kendi