Mbugua & 3 others v Turi Gardens Limited (Civil Application E538 of 2024) [2025] KECA 755 (KLR)
The bottom line
#Kenya's Court of Appeal stopped a hospital from evicting tenants early, protecting their lease for its remaining 18 months while their appeal is heard.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicants have an arguable appeal against the ruling of Ogutu-Mboya J delivered on 14th October 2024
- 2.Whether the intended appeal will be rendered nugatory if the restraining orders sought are not granted
Key legal issues
#Arguability of the intended appeal
The appeal was arguable on the ground that the trial court permitted the respondent to breach the lease covenant by entering the premises before expiry of the lease.
The applicants contended that the trial court destroyed the essence of a lease, namely exclusive possession with the right to exclude the landlord during the term. The Court found this a matter meriting consideration on appeal, satisfying the first limb of the rule 5(2)(b) threshold.
Nugatory value of the appeal
The appeal would be rendered nugatory if the orders were not granted because the respondent's own averments showed financial distress and sale of the suit property, making damages an inadequate remedy.
The Court noted the applicants' established businesses and livelihood derived from the premises, and the respondent's admission through Dr. Thenya that it had been forced to sell the suit property to meet financial obligations. The Court was therefore not satisfied that the respondent could compensate the applicants in damages if the appeal later succeeded.
Applicants' conduct in seeking relief from multiple forums
The Court declined to engage with the propriety of the applicants obtaining injunction orders from the Business Premises Rent Tribunal during the pendency of the application.
The respondent argued that orders obtained from the BPRT rendered the appeal useless and that the applicants had failed to disclose this. The Court expressly declined to rule on the propriety of the applicants' conduct, granting the orders nonetheless for the balance of the lease term.
Legal principles established
#- To succeed on a rule 5(2)(b) application, a party must satisfy the Court that it has an arguable appeal and that the appeal will be rendered nugatory if the orders sought are not granted.
- Whether an appeal will be rendered nugatory depends on the facts and circumstances of each case, including whether what is sought to be stayed is reversible and whether damages will reasonably compensate the aggrieved party.
Court orders
#- 1.Injunctive orders restraining the respondent from evicting the applicants from the suit premises pending expiry of the applicants' lease with the respondent, or the hearing and determination of their intended appeal, whichever is earlier
- 2.Costs of the application to abide the outcome of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court (trial court)
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules and section 3 of the Appellate Jurisdiction Act
Relief refused
#Restraint orders limited in scope beyond the balance of the lease term
The Court granted the orders only for the remaining 18 months of the lease, not indefinitely
Costs
The costs of the application shall abide the outcome of the appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
To succeed in such an application, a party must satisfy the Court, first, that it has an arguable appeal; and, secondly, that its appeal will be rendered nugatory if the orders sought are not granted.
Whether or not an appeal will be rendered nugatory depends on whether or not what is sought to be stayed if allowed to happen is reversible; or if it is not reversible whether damages will reasonably compensate the party aggrieved.
We accordingly grant injunctive orders restraining the respondent from evicting the applicants from the suit premises pending expiry of the applicants’ lease with the respondent, or the hearing and determination of their intended appeal, whichever is earlier.
The costs of the application shall abide the outcome of the appeal.
Issues in the judgment
#The judgment does not print the full case title or appeal number of the parties; the respondent is referred to only descriptively and the applicant submissions are dated inconsistently (28th October 2024 in one passage and 18th November 2024 in another).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbugua & 3 others v Turi Gardens Limited (Civil Application E538 of 2024) [2025] KECA 755 (KLR)", Case Analysis (2025). Application dated 18th October 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/755/eng@2025-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.