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ELCPartially AllowedNot stated in the judgment· [2025] KEELC 4951 (KLR)
Mbwiria v Githire (Environment and Land Appeal E208 of 2024) [2025] KEELC 4951 (KLR)
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#What this practically means
#Executive summary
#This ruling by Hon. T. Murigi, Judge, of the High Court determined a Notice of Motion dated 20th December 2024 in which the Appellant sought a stay of execution of a judgment delivered on 22nd November 2024 by Hon. Gakuhi Chege, Chairperson of the Business Premises Rent Tribunal, which awarded the Respondent Kshs. 1,364,190/- and costs. The Appellant argued she would suffer irreparable loss as she could not raise the decretal sum, that the Respondent would be unable to refund it if the appeal succeeded, and that the appeal raised triable issues. The Respondent opposed, contending the decretal sum was rightfully awarded, that no security had been offered, and that substantial loss had not been demonstrated. The court identified a single issue: whether the Applicant satisfied the conditions for stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules. Applying Butt v Rent Restriction Tribunal, RWW v EKW, Mukuma v Abuoga, Charles Wahome Gethi v Angela Wairimu Gethi and Arun C Sharma v Ashana Raikundalia, the court found that substantial loss was not proved, that the application was filed without delay (judgment on 22nd November 2024; application on 20th December 2024), and that the mandatory security condition had not been satisfied as the Applicant expressed no willingness to provide security. Although the court found the threshold unmet, it granted a conditional stay in the interest of justice: stay pending appeal, with the Appellant to provide a bank guarantee of the decretal sum within 30 days, failing which the stay lapses automatically. Costs were to abide the outcome of the appeal.
Key legal issues
#01
Whether the conditions in Order 42 Rule 6(2) for stay of execution pending appeal were satisfied
Holding
Substantial loss not demonstrated and no security offered, but conditional stay granted in the interest of justice upon a bank guarantee
Reasoning
The court found the applicant did not prove the substantial loss she would suffer, notwithstanding her claim of inability to raise the decretal sum. The application was filed timeously. However, security is mandatory, and the applicant expressed no willingness to provide it. Balancing the parties' rights, the court granted a conditional stay secured by a bank guarantee, defaulting to lapse.
p. 5
Legal principles established
#- An applicant for stay must prove substantial loss, not merely assert it
- Provision of security under Order 42 Rule 6(2)(b) is mandatory
Court orders
#- 1.Stay of execution of the judgment delivered on 22nd November 2024 is granted pending the hearing and determination of the appeal
- 2.The Appellant to provide a bank guarantee of the decretal sum within 30 days from the date of this ruling
- 3.In default of providing the bank guarantee, the stay shall automatically lapse
- 4.Costs to abide with the outcome of the appeal
- On appeal from
- Business Premises Rent Tribunal
- Jurisdiction invoked
- Appellate jurisdiction over the Business Premises Rent Tribunal; application under Order 42 Rule 6 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbwiria v Githire (Environment and Land Appeal E208 of 2024) [2025] KEELC 4951 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4951/eng@2025-06-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.