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ELCPartially AllowedNotice of Motion dated 18th July, 2025 (appeal against Ruling in Eldoret BPRT Case No. E013 of 2025)· [2025] KEELC 7458 (KLR)

Kandie t/a Chesirwo Agencies v Kiplelei Limited (Environment and Land Appeal E022 of 2025) [2025] KEELC 7458 (KLR)

Environment and Land Court
30 October 2025
CYC. K. Yano
3,104 words in judgment
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The bottom line

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What this practically means

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Executive summary

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By Notice of Motion dated 18th July 2025, the appellant, a tenant before the Eldoret BPRT in Case No. E013 of 2025, sought stay of execution, proceedings and further action pending appeal against the tribunal's ruling of 23rd April 2025, which dismissed his preliminary objection challenging the tribunal's jurisdiction over the landlord's suit. The landlord opposed, contending the tenant was guilty of forum shopping, was in rent arrears of Kshs. 424,000/=, and had not met the Order 42 Rule 6 threshold; in the alternative it sought payment of outstanding rent. Yano J identified two issues: whether stay of execution could issue against the ruling, and whether stay of proceedings could issue. On the first, the court held that the ruling dismissing the preliminary objection was a negative order incapable of execution and thus incapable of being stayed, following KCB v Tamarind Meadows, Kanwal Sarjit Singh Dhiman and Raymond M. Omboga. On the second, the court applied Global Tours & Travels and Niazsons, found that the appeal raised an arguable jurisdictional issue - jurisdiction going to the root of the case - and that allowing the tribunal proceedings to continue would render a successful appeal nugatory. Though the application was filed almost three months after the ruling without explanation, the court found no inordinate delay. The application was partially allowed: stay of proceedings in the BPRT was granted pending the appeal, subject to the tenant paying monthly rent as it falls due from November 2025, with the disputed arrears awaiting the appeal's outcome; the appellant was to file the Record of Appeal within 30 days; each party was to bear their own costs.

Key legal issues

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01

Whether stay of execution can issue against the tribunal ruling of 23.04.2025

Holding

No - the ruling dismissing the preliminary objection was a negative order incapable of execution and thus incapable of stay

Reasoning

The tribunal ruling merely dismissed the applicant's preliminary objection challenging jurisdiction. It did not order any party to do or refrain from doing anything. Following Kenya Commercial Bank v Tamarind Meadows and the negative-order case law, the court held that no execution is threatened and no stay of execution can issue.

p. 4
02

Whether stay of proceedings should issue pending appeal

Holding

Yes - the appeal raising jurisdiction of the BPRT is arguable and allowing the tribunal to proceed would render the appeal nugatory if successful

Reasoning

Applying Global Tours & Travels and Niazsons, the court weighed the pros and cons, found the jurisdictional challenge arguable, held the appeal would be rendered nugatory if eviction orders issued, and found no inordinate delay despite the nearly three-month gap, in the interest of substantive justice.

p. 6

Legal principles established

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  • An order dismissing a preliminary objection is a negative order incapable of execution and therefore incapable of being stayed
  • No appeal operates as an automatic stay of execution; stay under Order 42 Rule 6 requires substantial loss, absence of unreasonable delay, and security
  • An appeal raising a challenge to jurisdiction is arguable and may justify stay of proceedings pending appeal

Court orders

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  1. 1.An Order for Stay of Proceedings and/or further action issued in Eldoret BPRT Case No. E013 of 2025 pending the hearing and determination of the appeal, subject to payment of monthly rent as and when it falls due with effect from November, 2025, with the alleged disputed arrears awaiting the outcome of the appeal
  2. 2.The appellant directed to file the Record of Appeal within 30 days from the date of the ruling
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 Rule 6(1) and 6(2)
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301Section 12(1)(e)

Cases cited (5)

  • Kenya Commercial Bank Limited v Tamarind Meadows Limited & 7 Others
    [2016] eKLR
  • Kanwal Sarjit Singh Dhiman v Keshavji Juvraj Shah
    [2008] eKLR
  • Raymond M. Omboga v Austine Pyan Maranga
  • Global Tours & Travels Limited; Nairobi HC Winding Up Cause No. 43 of 2000
  • Niazsons (K) Ltd. vs. China Road & Bridge Corporation (Kenya)
    [2001] eKLR
On appeal from
Business Premises Rent Tribunal (BPRT), Eldoret
E013 of 2025
Jurisdiction invoked
Appellate jurisdiction over the Business Premises Rent Tribunal; Order 42 Rule 6 of the Civil Procedure Rules, 2010

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, "Kandie t/a Chesirwo Agencies v Kiplelei Limited (Environment and Land Appeal E022 of 2025) [2025] KEELC 7458 (KLR)", Case Analysis (2025). Notice of Motion dated 18th July, 2025 (appeal against Ruling in Eldoret BPRT Case No. E013 of 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7458/eng@2025-10-30

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