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ELCAllowedNot stated in the judgment (appeal from Eldoret APRT E032 of 2024)· [2025] KEELC 7025 (KLR)
Optica Kenya Limited v Aya Limited (Environment and Land Appeal E008 of 2025) [2025] KEELC 7025 (KLR)
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·~10 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#By Notice of Motion dated 27th February, 2025, the Appellant sought a stay of execution of the judgment of the Tribunal dated 24th February, 2025 in Eldoret APRT E032 of 2024, pending an appeal. The Appellant's Director, Wazeem Mohamed, deponed that eviction from the suit premises would disrupt its business, occasion loss and prejudice its customers, and render the appeal nugatory; he also alleged the Respondent's business permit related to different premises and offered to pay rent and abide by conditions. The Respondent, through its Director of Operations Isaac Njoroge, opposed the motion, contending that no appeal had been annexed, the Appellant had been served with a termination notice over a year earlier, and the Appellant had not paid the assessed costs of KShs. 50,000/- and could not be trusted to provide security. In written submissions, the Appellant relied on Order 42 Rule 6 of the Civil Procedure Rules and supporting authorities; the Respondent argued the appeal was not arguable and that substantial loss had not been shown. The court framed a single issue: whether a stay of execution pending appeal should issue. Applying the three conditions in Order 42 Rule 6, the court held that eviction would render the appeal nugatory since the premises are the subject matter of the appeal; the application, filed three days after judgment, was made without undue delay; and the Appellant's willingness to abide by conditions satisfied the security requirement. The court allowed the application, staying execution pending appeal on condition that the Appellant deposit KShs. 50,000/- into court within 14 days, failing which the stay lapses, with costs of the application to be costs in the appeal.
Key legal issues
#01
Whether the Appellant satisfied the conditions for stay of execution under Order 42 Rule 6 of the Civil Procedure Rules
Holding
The court held that all three conditions were met: substantial loss (eviction would render the appeal nugatory since the premises are the subject matter of the appeal), the application was filed three days after judgment (no undue delay), and the Appellant's willingness to abide by conditions sufficed as security.
Reasoning
Relying on James Wangalwa and Kenya Shell, the court found that eviction and renovation would make it unlikely the Appellant could return to the premises if the appeal succeeded, rendering it nugatory. Filing within three days of judgment showed no delay. The offer to abide by conditions satisfied the security requirement, the court retaining discretion over the security's form, which it set at deposit of the KShs. 50,000/- assessed costs.
p. 5
Legal principles established
#- Substantial loss is the cornerstone of the jurisdiction to grant stay of execution pending appeal.
- Security under Order 42 rule 6 guarantees due performance of the decree, not punishment of the judgment debtor.
- An applicant's offer of security, with the court retaining discretion over its form, suffices to satisfy the security condition.
Court orders
#- 1.An order be and is hereby issued staying the execution of the orders in the judgment dated 24th February, 2025 in Eldoret APRT E032 of 2024 pending the hearing and determination of the Appeal.
- 2.The Appellant is directed to deposit Kshs. 50,000/- being the undisputed assessed costs of the suit at the tribunal into court within 14 days of the ruling, failing which the order of stay shall automatically lapse.
- 3.The costs of the Application shall be costs in the Appeal.
- On appeal from
- Business Premises Rent Tribunal (Tribunal)
- Eldoret APRT E032 of 2024
- Jurisdiction invoked
- Order 42 Rules 6(1) and (2) of the Civil Procedure Rules, the court hearing an appeal from the Tribunal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Optica Kenya Limited v Aya Limited (Environment and Land Appeal E008 of 2025) [2025] KEELC 7025 (KLR)", Case Analysis (2025). Not stated in the judgment (appeal from Eldoret APRT E032 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7025/eng@2025-10-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.