Kenphy Investment Limited v Hakasa Properties Limited (Environment and Land Appeal E057 of 2026) [2026] KEELC 3714 (KLR)
The bottom line
#A Nairobi court paused a tenant's eviction pending appeal, but only because the tenant agreed to keep paying rent into a locked joint account.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant demonstrated substantial loss justifying stay of execution
Yes - eviction and loss of livelihood would cause prejudice transcending ordinary execution, and restoration may not be straightforward if the appeal succeeds.
The impugned Tribunal order required the Applicant to give vacant possession, not payment of a money decree. The Applicant has occupied the premises for over two decades operating a parking lot and used oil business. If eviction occurred and the appeal later succeeded, restoring the status quo might not be straightforward, so the prejudice transcends ordinary consequences of execution.
Whether the application was filed without unreasonable delay
Yes - the ruling was delivered on 6th March 2026 and the application filed on 30th March 2026, a period of approximately twenty-four days.
The court compared the date of the ruling sought to be appealed against with the date of filing the application and found that a period of approximately twenty-four days could not constitute inordinate delay, satisfying the second condition under Order 42 Rule 6(2).
Whether security should be imposed as a condition for stay
Yes - monthly occupation charges equivalent to the last agreed rent to be deposited into a joint interest-earning account, with the stay lapsing on default.
Relying on Arun C. Sharma v Ashana Raikundalia, the court held that security guarantees due performance of any ultimate decree. To balance the Applicant's right of appeal against the Respondent's right to enjoy the fruits of its judgment, security in the form of monthly deposits was imposed, with the record of appeal to be filed within sixty days and automatic lapse on default.
Whether the intended appeal on the applicability of Section 4 of Cap. 301 raises a bona fide issue
Yes - the dispute on whether a statutory termination notice was required raises a bona fide issue deserving consideration on appeal, without expressing a concluded view on the merits.
The intended appeal is anchored on the alleged failure to issue a Landlord's Notice to Terminate Tenancy under Section 4 of Cap. 301, while the Respondent maintains the tenancy expired by effluxion of time on 31st December 2025. The court found this a genuine arguable issue but expressly declined to make any concluded findings on the merits.
Legal principles established
#- The three requirements for stay under Order 42 Rule 6(2) - substantial loss, absence of unreasonable delay, and security - are cumulative and must all be satisfied.
- Substantial loss is the cornerstone of an application for stay.
- The purpose of security is to guarantee due performance of the decree, not to punish the judgment debtor.
Court orders
#- 1.Stay of execution of the Ruling and Order issued in Nairobi BPRT Case No. E1423 of 2025, Kenphy Investment Limited v Hakasa Properties Limited pending the hearing and determination of the appeal
- 2.The Appellant to deposit monthly occupation charges equivalent to the last agreed rent into a joint interest-earning account in the names of the parties' advocates within thirty (30) days and continue making such monthly deposits pending determination of the appeal
- 3.The Appellant to file and serve the Record of Appeal within sixty (60) days
- 4.In default of compliance with orders (b) and (c), the stay shall automatically lapse
- 5.Costs of the application to abide the outcome of the appeal
- On appeal from
- Business Premises Rent Tribunal
- Nairobi BPRT Case No. E1423 of 2025
- Jurisdiction invoked
- Appellate jurisdiction over the Business Premises Rent Tribunal; application under Order 42 Rule 6(2) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenphy Investment Limited v Hakasa Properties Limited (Environment and Land Appeal E057 of 2026) [2026] KEELC 3714 (KLR)", Case Analysis (2026). ELCA E057 OF 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3714/eng@2026-06-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.