Musila v Mwinzi t/a Mwinzi and Associates Advocates & 2 others (Environment and Land Appeal E259 of 2025) [2026] KEELC 2147 (KLR)
The bottom line
#The Environment and Land Court paused a Tribunal's contempt fines and jail threat while an appeal proceeds, but refused to erase the ruling itself.
What this practically means
#Executive summary
#Key legal issues
#Whether leave to appeal out of time should be granted
Leave granted; the ~78-day delay was sufficiently explained by the erroneous filing of the appeal in the High Court, its withdrawal and prompt re-filing in the correct forum.
The court applied the settled discretionary principles from Leo Sila Mutiso, Salat v IEBC and Vishva Stone Suppliers, considering the length of the delay, its explanation and prejudice. Filing in the wrong court was not inordinate where the applicant acted promptly upon realising the jurisdictional error and re-filed the day after withdrawal was endorsed.
Whether stay of execution of the Tribunal's contempt orders should issue pending appeal
Stay granted; the applicant would suffer substantial loss since the orders carried a fine of Kshs. 520,000/= with arrest and committal to civil jail in default, and no security was required because any amount payable would be a fine to the government rather than a decree debt.
Applying Butt v Rent Restriction Tribunal, Kenya Shell and Order 42 Rule 6 principles, the court found substantial loss because the appellant's freedom would be curtailed pending appeal. The application was made without undue delay, and the mandatory security condition was held inapplicable because the sums ordered were penal, not a decree for due performance.
Whether the Tribunal's Ruling and orders should be set aside at this interlocutory stage
Prayer declined; setting aside the ruling before the appeal is heard would determine the main appeal prematurely.
The court held that the relief to set aside the Tribunal's orders could only be determined in the appeal itself, since granting it now would pre-empt the parties' opportunity to prosecute their cases on the merits.
Legal principles established
#- The decision to extend time for appealing is discretionary, considering the length of and reasons for delay, the chances of the appeal succeeding and prejudice to the respondent.
- Substantial loss is the cornerstone of the jurisdiction to grant stay of execution pending appeal.
- Where the order under appeal is a punitive fine with civil jail in default, security for due performance is not required for a stay.
Court orders
#- 1.Stay of execution of the Orders and/or Ruling of the Tribunal delivered on 15/8/2025 in E045 of 2025 pending the hearing and determination of the Appeal
- 2.The Memorandum of Appeal deemed as duly filed subject to payment of the requisite Court fees
- 3.Leave granted to file the record of appeal within 45 days from the date of the Ruling
- 4.The prayer for setting aside the Ruling of the Tribunal declined
- 5.Costs of the application to abide the outcome of the appeal
- On appeal from
- Business Premises Rent Tribunal
- BPRT No. E045 of 2025
- Jurisdiction invoked
- Sections 13(1), 13(4) and 19 of the Environment and Land Court Act; Sections 1A, 1B, 3A, 79G and 95 of the Civil Procedure Act; Section 15(1) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act; Order 42 Rule 6 and Order 50 Rule 6 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Musila v Mwinzi t/a Mwinzi and Associates Advocates & 2 others (Environment and Land Appeal E259 of 2025) [2026] KEELC 2147 (KLR)", Case Analysis (2026). ELC Appeal (arising from BPRT No. E045 of 2025) – Ruling on Notice of Motion dated 3/12/2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2147/eng@2026-04-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.