Fremo Medical Centre Ltd v Kahihu (Environment and Land Appeal E225 of 2025) [2026] KEELC 3357 (KLR)
The bottom line
#A Kenyan tenant facing eviction won more time: the High Court paused the tribunal's eviction order, but only if he pays Kshs 350,000 security and quickly files his appeal.
What this practically means
#Executive summary
#Key legal issues
#Whether the Tribunal's orders were a negative order incapable of stay
The orders were positive orders - vacation of the premises and payment of rent arrears - and are capable of being stayed.
The Respondent argued that since the reference was dismissed, the resulting orders were negative and nothing could be stayed. The court disagreed, noting the Applicant still occupied part of the premises and that the tribunal ordered affirmative acts: removal of the tenant and payment of Kshs 134,000 rent arrears. Positive orders requiring action can be stayed to preserve the appeal.
Whether substantial loss was demonstrated
Substantial loss was shown because the Respondent had leased the premises to a third-party developer and the demised premises could be demolished before the appeal was heard.
The Applicant operated a medical facility on the premises since 2009 with significant investment and staff. Given the Respondent's lease with Alaya Consultants Limited obliging her to provide vacant possession, demolition of the demised premises in compliance with that lease before the appeal was determined would render the appeal nugatory. Substantial loss was therefore established.
Whether the application was made without unreasonable delay
The application filed on 29/10/25, about 13 days after the ruling of 16/10/25, was in time.
Order 42 rule 6(2)(a) requires the application to be made without unreasonable delay. The ruling was delivered on 16/10/25 and the application dated 29/10/25, a delay of about 13 days, which the court found to be in time.
Security for due performance
The Applicant was ordered to deposit Kshs 350,000/- as security for costs within 15 days.
Under Order 42 rule 6(2)(b), the court may order security for the due performance of the decree. Weighing the Respondent's demand for Kshs 10 million against the Applicant's circumstances, the court fixed security at Kshs 350,000/-, with the stay lapsing automatically if not complied with, and conditional on filing the record of appeal within 30 days.
Legal principles established
#- Stay of execution pending appeal requires substantial loss, an application made without unreasonable delay, and security for due performance under Order 42 rule 6(2).
- Orders directing a tenant to vacate and pay rent are positive orders capable of being stayed; the negative-order objection fails where the tribunal ordered affirmative action.
- An appellate court should not determine the merits of matters pending before the appeal court hearing the appeal.
Court orders
#- 1.Stay of execution of the Tribunal's ruling and orders of 16/10/25 pending the hearing and determination of the appeal, on terms
- 2.The Applicant to pay security for costs of Kshs 350,000/- to be deposited in Court within 15 days of the date of the order
- 3.The Applicant to file and serve the record of appeal within 30 days; in default the orders for stay shall lapse automatically
- 4.Costs in favour of the Respondent
- On appeal from
- Tribunal (Business Premises Rent Tribunal, Chairman's ruling)
- Not stated in judgment
- Jurisdiction invoked
- Order 42 rule 6(1) & (2) Civil Procedure Rules - stay of execution pending appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Fremo Medical Centre Ltd v Kahihu (Environment and Land Appeal E225 of 2025) [2026] KEELC 3357 (KLR)", Case Analysis (2026). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3357/eng@2026-06-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.