Fuks v Cotswold Estate Ltd (Land Case Appeal E017 of 2025) [2026] KEELC 2798 (KLR)
The bottom line
#A Kenyan landlord lost an attempt to evict a tenant pending appeal: the court froze eviction but only because the tenant posted security and promised to move fast.
What this practically means
#Executive summary
#Key legal issues
#Leave to appeal out of time under Section 79G
The Appellant demonstrated sufficient cause; the delay was not inordinate and was attributable to the Tribunal's failure to supply certified copies, and the appeal raises substantial grounds
The Court applied the extension-of-time principles in Leo Sila Mutiso, Salat v IEBC and First American Bank v Gulab P. Shah: length of and reason for delay, arguability of the appeal, and prejudice to the Respondent. The Appellant filed the Memorandum of Appeal on 15th November 2025, shortly after the 29th October 2025 judgment; the absence of certified copies was attributable to the Tribunal registry. Preservation of the right of appeal was held to be a constitutional imperative under Articles 48 and 50.
Threshold for stay of execution under Order 42 Rule 6(2)
All cumulative conditions were satisfied: application brought without undue delay, substantial loss demonstrated (eviction would destroy evidence and irreversibly alter the status quo), and security to be furnished within 14 days
Applying Butt v Rent Restriction Tribunal, Kenya Shell v Kigibu, Mukuma v Abuoga and Consolidated Marine v Nampijja, the Court found eviction before determination of the appeal would irreversibly prejudice the Appellant's right of appeal and destroy evidence relevant to Kwale ELC No. E047 of 2025. Security was held necessary, with the form and quantum proportionate to the risk of loss and possibly taking the form of an undertaking as to damages.
Whether the Appellant's conduct disentitled him from equitable relief
The conduct (multiplicity of suits, unpaid rent and costs) raises concerns but does not wholly disentitle the Appellant; conditions such as security mitigate prejudice to the Respondent
The Respondent catalogued numerous suits, dismissed petitions and unpaid costs, arguing forum shopping and abuse of process. The Court weighed abuse of process against the constitutional right of appeal under Articles 25(c) and 50(1) and (2), holding that questionable conduct should not automatically defeat substantive justice where arguable grounds exist, and that equity requires reconciliation of both parties' rights.
Arguability of the intended appeal
The appeal raises serious, non-frivolous questions of law and fact sufficient to warrant preservation of the subject matter
The Memorandum of Appeal raised the legality of distress levied in defiance of Tribunal orders, failure to account for seized property valued at approximately Kshs. 64,000,000, the Tribunal's refusal to grant stay despite evidence of irreparable harm, and abuse of process in parallel proceedings before the Msambweni Principal Magistrate's Court. The Respondent's objections, while weighty, did not negate the existence of arguable grounds.
Substantial loss
Substantial loss demonstrated; eviction would extinguish the right to pursue the appeal meaningfully and destroy evidence in pending suits
The Court balanced the decree holder's right to enjoy the fruits of judgment against the Appellant's constitutional right of appeal under Article 50(1). It found that restoration of possession is rarely achievable once premises are vacated, and that the Respondent's prejudice could be mitigated through security or undertakings against waste.
Legal principles established
#- The purpose of stay of execution pending appeal is to preserve the substratum of the appeal so that it is not rendered nugatory
- Substantial loss is the cornerstone of the jurisdiction to grant stay of execution pending appeal
- Security under Order 42 Rule 6 is intended to guarantee due performance of the decree, not to punish the judgment debtor
- Conduct that is troubling does not automatically disentitle a litigant from equitable relief where arguable grounds exist; conditions may instead mitigate prejudice
Court orders
#- 1.Leave granted to the Appellant to file the appeal out of time, with the Memorandum of Appeal deemed duly filed upon payment of requisite court fees
- 2.Order of stay of execution and injunction issued restraining the Respondent, its servants, agents or any persons acting under its instructions from evicting, selling, transferring, leasing or otherwise interfering with the suit premises pending the hearing and determination of the intended appeal
- 3.The Appellant to file and serve security in the form of an undertaking as to damages in a quantified sum, or alternative security (cash deposit, bank guarantee or other acceptable form), within 14 days, failing which the stay and injunctive orders lapse automatically
- 4.The Appellant to file and serve a well paginated and bound Record of Appeal within 30 days, failing which the injunctive orders shall stand vacated
- 5.Mention on 22nd September 2026 for admission of the Appeal and taking directions on disposal pursuant to Section 79B of the Civil Procedure Act and Order 42 Rules 11, 13 and 16
- 6.Costs of the Notice of Motion dated 15th November 2025 to abide the outcome of the intended appeal
- On appeal from
- Business Premises Rent Tribunal, Mombasa
- BPRT Case No. E283 of 2024
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act, Cap. 21 and Order 42 Rule 6 of the Civil Procedure Rules, 2010; appeal under Section 79G of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Fuks v Cotswold Estate Ltd (Land Case Appeal E017 of 2025) [2026] KEELC 2798 (KLR)", Case Analysis (2026). ELCLA No. E017 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2798/eng@2026-05-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.