https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5131

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NYERI** **ELCLA NO E011 OF 2026** **MARTHA WANJIKU………………………APPLICANT/APPELLANT** **-VERSUS-** **KENYA AFRICAN OTHAYA BUS UNION ……….1ST RESPONDENT** **HIGHRISE COMMERCIAL RENT AGENCY LIMITED ……………………………………………...2ND RESPONDENT** **RULING** 1. In the application dated 10th March, 2026, the Applicant requests the following orders: 2. It is requested that the application be certified as urgent. 3. That the Honourable Court be pleased to stay execution of the ruling and order issued in **Nyeri BPRT Case No. E 126 of 2024** pending the hearing and determination of this application. 4. That the Honourable Court be pleased to stay the execution of the ruling and order issued in **Nyeri BPRT Case No. E 126 of 2024**, pending the hearing and determination of the appeal. 5. That the Honourable Court be pleased to stay the proceedings in **Nyeri MCCCMISC. E014 of 2026**, seeking the adoption of the orders and ruling issued on 12th November, 2025, by Hon Mike Makori in **Nyeri BPRT Case No. E 126 of 2024**, as a decree of the court, pending the hearing and determination of this application. 6. THAT the Honourable Court be pleased to stay the proceedings in **Nyeri MCCCMISC E014 of 2026** seeking the adoption of the orders and ruling issued on 12th November, 2025 by Hon Mike Makori in **Nyeri BPRT Case No. E 126 of 2024** as a decree of the court pending hearing and determination of the appeal. 7. That this Court be pleased to issue any additional directions it may consider appropriate to grant under the circumstances. 8. Costs of this suit plus interest. 9. The application is grounded on four grounds and is supported by the annexed affidavit of Martha Wanjiku, who swore the Supporting Affidavit dated 10th March 2026. In response to the application, the Respondents submitted a Replying Affidavit dated 15th August 2026, which vehemently opposed it. 10. The Court directed that the application be canvassed through written submissions. I acknowledge receipt of submissions from counsel for the parties, which went a long way in assisting the Court in reaching its verdict. 11. From the materials and submissions placed before me, the issues I frame for the determination of this Court are whether the Honourable Court should be pleased to stay execution in **Nyeri BPRT Case No. E126 of 2024**, a case before the Hon. Mike Makori, and orders issued on 12th November 2025, whether the Honourable Court should stay the proceedings in **Nyeri MCCCMISCMISC/E014/2026**, seeking the adoption of the orders and ruling issued on 12th November 2025 by the Hon. Mike Makori in **Nyeri BPRT Case No. E126 of 2024** as a decree of the court, pending the outcome of the appeal and the party responsible for costs. 12. Citing pertinent statutory provisions and case law, counsel for the Applicant asserts that his client will endure irreparable harm and face imminent eviction and disruption of business if the requested orders are not granted. It is contended that the orders issued by the BPRT are likely to be adopted and implemented before the hearing and determination of the current appeal, thereby rendering the appeal essentially moot. Besides, counsel argues that the appeal is arguable. 13. Counsel for the Respondent, citing the relevant statutory provisions and case law in this area, submits that the Applicant has failed to demonstrate clearly the substantial loss she will suffer if the application is not allowed. The premises in question belong to the 1st Respondent; the Applicant, who is in occupation, has not paid rent for close to one and a half years. She therefore cannot have her cake and eat it. She cannot pray to remain on the suit premises while not paying rent, and the orders for stay are merely intended to preserve her status quo of staying on the premises rent-free. The party herein who is suffering substantial loss is none other than the 1st Respondent. He is not financially benefiting from his premises, and the longer the Applicants stay, the greater the suffering. 14. Counsel states that the Applicant herein, in her application, has not provided any security for costs as required. She only states that she is not financially stable, yet nothing has been provided to substantiate this. 15. Counsel avers and concludes that the appeal has no prospect of success; accordingly, the dismissal of this application has no consequences for the appeal herein. The threshold for granting a stay of execution has not been met by the Applicant herein. It is therefore sought that the application be dismissed with costs. 16. **An appeal to the Environment and Land Court (ELC) against a judgment of a lower court does not automatically suspend enforcement of the decree issued by that Court. Statutory provisions and case law establish that the ELC possesses discretionary jurisdiction to grant a stay of execution; however, it is obliged to meticulously apply the tripartite statutory test to equitably balance the right of the successful party to enjoy their property rights against the Applicant's right to prevent their appeal from being rendered futile.** 17. This test is set out in Order 42, Rules 6(1) and (2) of the Civil Procedure Rules. The Applicant must show that they will suffer real, material, and irreversible loss if the stay is denied and the judgment or decree is executed immediately. The application for a stay must be filed promptly after the judgment or order is delivered. If there is any delay, the Applicant must provide a sufficient and justifiable reason to the court. The Applicant must be willing and ready to provide security. This ensures that, if their appeal or application fails, the winning party is financially protected and can readily execute the judgment. 18. Although a stay application is not the appeal itself, the ELC will evaluate whether the proposed appeal is arguable and non-frivolous. In **Khaki & 28 others v Juma & 5 others [2025] eKLR**, the ELC observed that discretion must be exercised to avoid obstructing an appeal, provided there are legitimate grounds for it. 19. The appeal in this matter was filed in time. Hence, no inordinate delay. 20. It will be noted from the record that the Applicant (Tenant) and the 1st Respondent (Landlord) have previously appeared before the BPRT, with the Tenant initially failing to pay rent – a failure the BPRT ordered the Tenant to rectify. In the 2nd instance, the Landlord issued a lawful termination notice, seeking to totally sever the Landlord/Tenant relationship, which the BPRT found lawful, thereby provoking the current appeal. 21. It is stated that to enforce the decree of the BPRT, the Magistrate Court has been moved to adopt the same for execution. 22. Balancing the interests of both parties in this matter, the Tenant who seeks to exercise the right of appeal and the Landlord who has lawfully terminated a tenancy, as provided by law and confirmed by the BPRT, I reckon that the only issue for this Court to consider on appeal is whether there exists a valid Landlord/Tenant relationship – which this Court can extend, rather than an issue of rent arrears or whether this Court can extend the relationship between the parties which has been extinguished by effluxion of time. 23. Besides, the proceedings to adopt the BPRT orders at the Magistrates' Court are said to have commenced. I was never given any timelines for the date of adoption or for when this would happen. I cannot issue blanket stay orders without supporting documentation. The Applicant is merely expressing apprehension. 24. I exercise discretion against the grant of stay orders in this matter. The motion dated 10th March, 2026 is hereby dismissed with costs. **Dated, signed, and delivered virtually at Nyeri on this 22nd day of July 2026, in the absence of the parties and their counsel, who were aware of the delivery date.** **E. K. MAKORI** **JUDGE**