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ELCDismissedMilimani MELC E354 of 2024 (Appeal)· [2026] KEELC 2006 (KLR)

Del Valle Limited v Shah & 2 others (Environment and Land Appeal E039 of 2026) [2026] KEELC 2006 (KLR)

Environment and Land Court
14 April 2026
1,859 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan tenant whose lease has expired cannot use a pending appeal to stay eviction, because holding over is trespass, not protected loss.

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 Milimani (E. K. Wabwoto, J) on the Appellant's application dated 8th March 2026 seeking stay of execution of the ruling and orders of Hon. M. Kurumbu (Mrs) P.M. delivered on 5th March 2026, or alternatively maintenance of the status quo, pending appeal. The underlying dispute concerns premises L.R. No. 209/64/16, Mogotio Road, Westlands, leased to the Appellant for a fixed term of 5 years and 3 months which expired on 30th September 2025. After notices of non-renewal, the Magistrate granted the Respondents a mandatory injunction compelling the Appellant to vacate within 7 days, with eviction by police supervision in default. The Appellant argued the order prematurely and summarily determined the suit at interlocutory stage without an eviction prayer in the defence or counterclaim, that it had arguable grounds, would suffer irreparable harm, and offered security for arrears. The Respondents maintained the lease expired by effluxion of time, occupation was trespass, arrears stood at Kshs. 11,005,763.51, and stay would rewrite an expired contract. The court framed one issue: whether the Appellant made out a case for stay or status quo. Applying Order 42 Rule 6(2), it held the three limbs conjunctive: delay was satisfied, but substantial loss was not shown since loss from ceasing unlawful occupation is compensable in damages, and the balance of convenience favoured the landlord. The application was dismissed with each party bearing own costs.

Key legal issues

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01

Whether the interlocutory eviction order summarily determined the suit without a full hearing

Holding

No; the order did not finally determine the suit, other issues remain open, and the Appellant was fully heard on the application.

Reasoning

The court found that a mandatory injunction at interlocutory stage is exceptional, but the core facts here were undisputed: the lease expired by effluxion of time, non-renewal notices were served, and no extension or consensual holding-over was shown. Superior courts have upheld jurisdiction to order vacation even at interlocutory stage in clear trespass cases, and the main suit remains pending for full adjudication.

p. 3
02

Whether the Appellant demonstrated substantial loss and balance of convenience for stay

Holding

No; loss from ceasing unlawful occupation is not protected substantial loss, and stay would extend an expired contract by judicial intervention.

Reasoning

Any business disruption is compensable in damages if the Appellant ultimately succeeds, while the 1st Respondent has been deprived of possession, use and mesne profits since October 2025 with arrears of Kshs. 11,005,763.51 accumulating. The offer of security cannot cure the absence of a legal right to occupy, and the court cannot rewrite contracts or extend expired leases.

p. 4

Legal principles established

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  • An appeal does not operate as a stay; stay requires substantial loss, absence of unreasonable delay and security, conjunctively under Order 42 Rule 6(2).
  • A tenant whose fixed-term lease has expired by effluxion of time and who holds over without consent is a trespasser with no legal or equitable right to occupation.
  • Loss arising from cessation of unlawful occupation after lease expiry is not 'substantial loss' under Order 42 Rule 6(2)(a); such loss is compensable in damages.

Court orders

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  1. 1.The Appellant's application dated 8th March 2026 is hereby dismissed.
  2. 2.Each party to bear own costs of the application.

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 Rule 6(1) and (2)

Cases cited (14)

  • Butt v Rent Restriction Tribunal
    [1982] KLR 417
  • Vishva Stone Suppliers Company Limited v RSR Stone (2006) Limited
    [2020] eKLR
  • Stanley Kang’ethe Kinyanjui v Tony Ketter & 5 Others
    [2013] eKLR
  • Giella v Cassman Brown
    (1973) EA 358
  • Kenya Breweries Ltd v Washington Okeyo
    (2002) EA 109
  • Locabail International Finance Ltd v Agro Export
    [1986] 1 All ER 901
  • Maher Unissa Karim v Edward Oluoch Odumbe
    [2015] KEHC 4029 (KLR)
  • Nancy Otieno Ouma v Joseph Kaloki t/a Royal Family Assembly
    [2019] eKLR
  • Joseph Kaloki t/a Royal Family Assembly v Nancy Otieno Ouma
    [2020] eKLR
  • Elgon House (2010) Ltd v Meya Agri Traders Limited
    [2026] KEELC 911 (KLR)
  • Relisa Housing Co-operative Society Ltd v Grace Atieno & another
    [2004] eKLR
  • R&K Investments v Evanson Gitau
    [1998] eKLR
  • Cause Impact Limited v Trustees & 2 others
    [2022] KEELC 75 (KLR)
  • Safaricom Limited v Ocean View Beach Hotel Limited
    [2010] eKLR
On appeal from
Chief Magistrate's Court, Milimani
MELC E354 of 2024
Jurisdiction invoked
Order 42 Rule 6(1) and (2) 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, "Del Valle Limited v Shah & 2 others (Environment and Land Appeal E039 of 2026) [2026] KEELC 2006 (KLR)", Case Analysis (2026). Milimani MELC E354 of 2024 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2006/eng@2026-04-14

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