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ELCDismissedNairobi BPRT Case No. E572 of 2024 (Appeal)· [2026] KEELC 1695 (KLR)

Makiyi Properties Limited v Salvation Healing Ministries (Environment and Land Appeal E089 of 2025) [2026] KEELC 1695 (KLR)

Environment and Land Court
24 March 2026
3,049 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi court refused to pause execution of a rent tribunal ruling because the attached goods had already been collected, but confirmed the appeal itself was filed on time.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Nairobi on the Appellant's (Makiyi Property Limited's) application dated 27/5/2025 seeking an interim stay of execution of a Ruling delivered on 17/4/2025 by the Business Premises Rent Tribunal in Nairobi BPRT Case No. E572 of 2024, and the Respondent's (Salvation Healing Ministry's) preliminary objection dated 23/6/2025. The dispute arises from a 3-year lease dated 1/6/2021 over Plot No. 5908/9-2; after rent default the Appellant levied distress for arrears of about Kshs. 3,368,640/=. Following an ELC judgment of 23/10/2023 declaring a portion of the land part of the estate of Gerishon Kamau Kirima, the Respondent purchased the property from the estate by agreement dated 9/12/2024 and stopped paying rent. The Tribunal ruled on 17/4/2025 that it lacked jurisdiction as the matter was no longer landlord-tenant, ordered release of attached goods and status quo pending recourse to another forum. The Appellant appealed and sought a stay; the Respondent objected that the appeal was filed out of time and without leave under Section 79G of the Civil Procedure Act. The court framed three issues: competency of the appeal, merit of the stay, and costs. It held the appeal was filed within 30 days (28 days after the ruling, accounting for holidays) and was competent. On stay, applying Order 42 rule 6 and Butt v Rent Restriction Tribunal, RWW v EKW and James Wangalwa v Cheseto, it found the conjunctive conditions unmet: the Respondent had already collected the attached goods, so no substantial loss likely to render the appeal nugatory was demonstrated. Both the application and the preliminary objection were dismissed with no order as to costs.

Key legal issues

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01

Whether there is a competent appeal before the court given the alleged out-of-time filing

Holding

The appeal was competent as it was filed within the statutory 30-day period.

Reasoning

The court applied Section 79G of the Civil Procedure Act and Section 16A of the Environment and Land Court Act. The impugned Ruling was delivered on 17/4/2025 and the Memorandum of Appeal was filed on 19/5/2025 - twenty-eight days after delivery when the Easter and Labour Day holidays are excluded. No leave to file out of time was therefore necessary, and the preliminary objection on competency failed.

p. 5
02

Whether stay of execution pending appeal was merited

Holding

Stay was refused because the applicant failed to demonstrate substantial loss.

Reasoning

Relying on Order 42 rule 6 and authorities including Butt v Rent Restriction Tribunal, RWW v EKW and James Wangalwa & Another v Agnes Naliaka Cheseto, the court held that substantial loss is the cornerstone of a stay application and the conditions are conjunctive. Since the Respondent had already collected the attached goods from the Auctioneers, execution had effectively been carried out and no significant loss likely to prejudice the appeal was shown, rendering the application unmerited.

p. 6
03

Costs of the application and preliminary objection

Holding

No order as to costs was made.

Reasoning

Having found both the Appellant's application and the Respondent's preliminary objection unmerited, the court dismissed both and exercised its discretion to order that there be no order as to costs, so each party bears their own costs of the interlocutory application.

p. 7

Legal principles established

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  • An appeal from a subordinate court to the High Court must be filed within 30 days of the decree or order appealed against, excluding time certified for preparation of the copy of the decree or order.
  • The three conditions for granting a stay of execution pending appeal under Order 42 rule 6 - substantial loss, application without undue delay, and security - must be met simultaneously as they are conjunctive.
  • Execution having been levied and completed does not by itself amount to substantial loss; the applicant must establish factors showing execution will irreparably affect or negate the essential core of the applicant as the successful party in the appeal.

Court orders

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  1. 1.The Appellant's application dated 27/5/2025 is dismissed.
  2. 2.The Respondent's Preliminary Objection dated 23/6/2025 is dismissed.
  3. 3.No order as to costs.

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 79G
  • Civil Procedure Rules, 2010Order 42 rule 6; Order 51
  • Environment and Land Court ActSection 16A

Cases cited (3)

  • Butt v Rent Restriction Tribunal
    (1982) KLR 417
  • RWW v EKW
    (2019) eKLR
  • James Wangalwa & Another v Agnes Naliaka Cheseto
    [2012] eKLR
On appeal from
Business Premises Rent Tribunal (Nairobi BPRT Case No. E572 of 2024)
Nairobi BPRT Case No. E572 of 2024
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; Order 42 rule 6 and Order 51 of the Civil Procedure Rules, 2010; Section 16A of the Environment and Land Court Act; Section 79G 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, "Makiyi Properties Limited v Salvation Healing Ministries (Environment and Land Appeal E089 of 2025) [2026] KEELC 1695 (KLR)", Case Analysis (2026). Nairobi BPRT Case No. E572 of 2024 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1695/eng@2026-03-24

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