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ELCPartially AllowedNot stated in the judgment (Notice of Motion dated 10th March 2025)· [2025] KEELC 4979 (KLR)

Miano & 2 others v Janet Kimathi Mbaka t/a Branden Junior School (Environment and Land Appeal E003 of 2025) (Environment and Land) [2025] KEELC 4979 (KLR)

Environment and Land Court
3 July 2025
5,268 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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A Kenyan court paused enforcement of a Kshs 4.17 million rent arrears judgment against tenants, but only after they deposit the full amount in court within 45 days.

What this practically means

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Executive summary

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The Appellants/Applicants, former tenants who operated a school on land parcel Naivasha/Maraigushu Block 2/2591, moved the Environment and Land Court at Naivasha by Notice of Motion dated 10th March 2025 seeking stay of execution of the judgment and decree of the Nakuru Business Premises Rent Tribunal in BPRT Case E132 of 2024, delivered on 30th January 2025 in their absence, awarding the Respondent/Landlord rent arrears of Kshs. 4,142,188/= and costs of Kshs. 30,000/=. They contended the lease contained an arbitration clause, that the Tribunal lacked jurisdiction, that the proceedings were res judicata vis-à-vis Naivasha CMC ELC E054/E053 of 2024, and that they were condemned unheard. The Respondent opposed, asserting a controlled tenancy within the Tribunal's jurisdiction, outstanding rent arrears, and the Applicants' failure to propose security, proposing instead half the decretal sum be paid to her and half deposited in court. The court framed two issues: whether the conditions for stay under Order 42 Rule 6 were met, and what orders to make. Applying Butt v Rent Restriction Tribunal, Kenya Shell v Kibiru and Consolidated Marine v Nampijja, the court found the appeal arguable, substantial loss demonstrated, and no undue delay, but held security mandatory. Stay was granted conditional on deposit of Kshs. 4,172,188/= in court within 45 days, filing of a record of appeal within 45 days, with stay lapsing on default and costs abiding the appeal.

Key legal issues

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01

Whether substantial loss was demonstrated

Holding

The Applicants demonstrated substantial loss; they have an arguable appeal which would be rendered nugatory if the decree is executed.

Reasoning

The court perused the draft Memorandum of Appeal, found it arguable, and accepted that execution of the Tribunal's decree of Kshs. 4,142,188/= in rent arrears plus costs would render the appeal nugatory, satisfying the first condition articulated in Kenya Shell Ltd v Benjamin Karuga Kibiru.

p. 9
02

Whether the application was made without unreasonable delay

Holding

The application was filed without undue delay, the judgment having been delivered on 30th January 2025 and the application filed on 10th March 2025.

Reasoning

The court tracked the chronology: judgment entered 30th January 2025, leave to appeal granted 10th February 2025, and the Memorandum of Appeal filed simultaneously with the application on 10th March 2025, finding the timeline compliant.

p. 9
03

Whether security for due performance should be furnished

Holding

Security is a mandatory condition; the court granted stay conditional on deposit of the full decretal amount of Kshs. 4,172,188/= in court within 45 days.

Reasoning

Order 42 Rule 6(2)(b) mandates security. The Applicants sought unconditional stay while the Respondent proposed half paid to her and half deposited in court. Exercising discretion and balancing the parties' interests, the court directed deposit of the whole sum in court, with stay lapsing on default.

p. 9

Legal principles established

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  • Security under Order 42 guarantees due performance of the decree, not punishment of the judgment debtor.
  • Stay is discretionary and must be exercised to preserve an appeal from being rendered nugatory, balancing both parties' interests.

Court orders

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  1. 1.Stay of the execution of the Judgement/Decree in Nakuru BPRT Case Number E132 of 2024 granted pending hearing and determination of the Applicant's intended Appeal.
  2. 2.The Appellants/Applicants to deposit Kshs. 4,172,188/= being the rent arrears and the assessed Landlord costs in court as security for due performance of the decree within 45 days from the date of the Ruling.
  3. 3.The Appellants/Applicants to compile, file and serve a record of appeal upon the Respondent within 45 days from the date hereof.
  4. 4.In the event of default of any of the aforementioned conditions, the stay shall lapse and the Respondent shall be at liberty to execute without further reference to the court.
  5. 5.The costs of the application to abide the outcome of the appeal.

Authorities

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Legislation

  • Civil Procedure RulesOrder 10 Rule 11
  • Civil Procedure RulesOrder 36 Rule 10
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure RulesOrder 42 Rule 6(2)(b)
  • Civil Procedure RulesOrder 42 Rule 7(1)
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSections 1A(2) and 1B

Cases cited (10)

  • Butt v Rent Restriction Tribunal
    [1979] KECA 22 (KLR)
  • Tropical Commodities Supplies Ltd & others v International Credit Bank Ltd (in liquidation)
    [2004] 2 EA 331
  • National Industrial Credit Bank Ltd v Aquinas Francis Wasike Another
    [2006] eKLR
  • James Wangalwa & Another v Agnes Naliaka Cheseto
    [2012] eKLR
  • Arun C. Sharma v Ashana Raikundalia t/a Raikundalia & Co. Advocates & 2 Others
    [2014] eKLR
  • Gianfranco Manenthi & Another v Africa Merchant Assurance Co. Ltd
    [2019] eKLR
  • Samvir Trustee Limited v Guardian Bank Limited
    [2007] eKLR
  • Edward Kamanu & Another v Hannah Mukui Gichuki & Another
    Milimani High Court Miscellaneous Application No. 78 of 2015
  • Consolidated Marine vs. Nampijja & Another
    Civil App.No.93 of 1989 (Nairobi)
  • Kenya Shell Limited v Benjamin Karuga Kibiru & another
    [1986] KECA 94 (KLR)
On appeal from
Nakuru Business Premises Rent Tribunal
Nakuru BPRT Case Number E132 of 2024
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules; Section 3A of the Civil Procedure Act

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, "Miano & 2 others v Janet Kimathi Mbaka t/a Branden Junior School (Environment and Land Appeal E003 of 2025)  (Environment and Land) [2025] KEELC 4979 (KLR)", Case Analysis (2025). Not stated in the judgment (Notice of Motion dated 10th March 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4979/eng@2025-07-03

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