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ELCAllowed· [2025] KEELC 3863 (KLR)

Ndonga t/a Efforts Automobiles v Gichigi & another (Land Case Appeal E052 of 2024) [2025] KEELC 3863 (KLR)

Environment and Land Court
15 May 2025
1,905 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Nakuru court paused a rent arrears judgment, but only because the tenant agreed to deposit Kshs 450,000 within 40 days.

What this practically means

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Executive summary

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This is a ruling by M. A. Odeny, Judge, delivered at Nakuru on 15th May 2025 on a Notice of Motion dated 7th November 2024 by the Appellant, Salim Ndonga t/a Efiorts Automobiles, seeking a stay of execution of a judgment of Hon. James Wahome Ndegwa delivered on 4th September 2024 in Nakuru Business Premises and Rent Tribunal Reference No. E154 of 2023, pending the hearing and determination of an appeal against a rent arrears award. The dispute arose from distress proceedings proclaimed against vehicles in the Applicant's care in respect of claimed rent arrears; the Applicant admitted Kshs 600,000, said he had paid Kshs 150,000, and offered to deposit Kshs 450,000 by instalments or, alternatively, land of equal or greater value. The 1st Respondent claimed Kshs 1,755,200 in arrears and opposed the application, arguing no substantial loss or security was established. The court applied Order 42 Rule 6 of the Civil Procedure Rules. It found the application was filed without unreasonable delay, as the Respondent confirmed. On substantial loss, it found the Applicant's claim of damage to his business reputation and livelihood unconvincing, since the Respondent could equally assert the rent arrears were her livelihood. On security, the court accepted the Applicant's good-faith offer of Kshs 450,000. Observing that the Respondent was entitled to the fruits of her judgment and that there should be a middle ground, the court granted a conditional stay: the Applicant to deposit Kshs 450,000 in a joint interest-earning account of the advocates within 40 days, failing which the stay lapses. Costs were to be in the cause.

Key legal issues

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01

Whether the application was made without unreasonable delay

Holding

Yes; judgment was delivered on 4th September 2024 and the application dated 7th November 2024 was brought without undue delay, confirmed by the Respondent.

Reasoning

The court compared the date of the Tribunal's judgment with the date of the Notice of Motion and found the delay of about two months not undue, noting the Respondent's own concession on timeliness. It relied on the principle that what constitutes unreasonable delay depends on the circumstances of each case.

p. 3
02

Whether the Applicant demonstrated substantial loss

Holding

The court was not convinced the claimed harm to business reputation and livelihood established substantial loss, since the Respondent could likewise claim the rent arrears were her livelihood.

Reasoning

The court found the Applicant's claim that attachment of third-party vehicles would damage his business reputation and cut short his main source of livelihood unconvincing as proof of substantial loss, reasoning the Respondent could equally argue the unpaid rent arrears were a source of her livelihood. It nonetheless invoked the principle that a stay preserves the substratum of the appeal.

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Whether security for the due performance of the decree had been given

Holding

The Applicant offered to deposit Kshs. 450,000 by instalments or, alternatively, land of equal or greater value; the court accepted the cash offer as the condition for stay.

Reasoning

Relying on the principle that an applicant should, in good faith, offer or propose security for performance of the decree, the court accepted the Applicant's offer of Kshs. 450,000 and made its deposit in a joint interest-earning account within 40 days a condition for the conditional stay, failing which the stay lapses.

p. 4

Legal principles established

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  • Stay of execution under Order 42 Rule 6 requires substantial loss, no unreasonable delay and security for due performance of the decree
  • A court may grant a conditional stay, balancing the applicant's right of appeal against the respondent's entitlement to the fruits of judgment

Court orders

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  1. 1.Conditional stay of execution of the judgment of Hon. James Wahome Ndegwa delivered on 4th September 2024 in Nakuru Business Premises and Rent Tribunal Reference No. E154 of 2023 pending the hearing and determination of the appeal
  2. 2.Applicant to deposit Kshs. 450,000 in a joint interest-earning account of the advocates on record within 40 days, failing which the stay lapses
  3. 3.Costs to be in the cause
On appeal from
Nakuru Business Premises and Rent Tribunal
Reference No. E154 of 2023
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ndonga t/a Efforts Automobiles v Gichigi & another (Land Case Appeal E052 of 2024) [2025] KEELC 3863 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3863/eng@2025-05-15

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.