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ELCDismissedELC LC No. E252 of 2026· [2026] KEELC 5104 (KLR)

Hanashim Investment Limited v Shah and Patel Industries Limited & 2 others (Environment and Land Case E252 of 2026) [2026] KEELC 5104 (KLR)

Environment and Land Court
31 July 2026
2,344 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court refused to pause execution of a KSh 3.7 million rent decree because the tenant showed no substantial loss and offered no security or repayment plan.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Environment and Land Court on a notice of motion dated 14th July, 2026 in which the plaintiff/applicant sought stay of execution and enforcement of the orders issued on 9th July, 2026, together with status quo orders and reconnection of water and electricity disconnected at the suit premises (units 8 & 9 first floor, Nairobi Block 35/977). On 9th July, 2026 the court had ordered the plaintiff to pay admitted rent arrears of Kshs.3,779,901.23 within 10 days; the plaintiff did not pay and instead filed an appeal in the Court of Appeal and a notice of appeal. Counsel for the defendants/respondents argued that the status quo orders lapsed on 19th July, 2026 for non-compliance, that the application was overtaken by events as distress had been levied pursuant to the proclamation notice dated 29th May, 2026, and that a party cannot concurrently pursue appeal and review under Order 45. The court framed four issues and applied Order 42 rule 6(2). Although the application was brought without delay, the applicant failed to demonstrate substantial loss, made no proposals towards repayment of admitted arrears exceeding Kshs.3,700,000/-, and did not address security for due performance of the decree. Further, distress had already been levied on 23rd July, 2026, leaving nothing to stay. The court found the application unmerited and overtaken by events, declared both the 14th July, 2026 and 30th June, 2026 notices of motion spent, and awarded costs of both applications to the plaintiff/applicant.

Key legal issues

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01

Whether the plaintiff/applicant satisfied the conditions for stay of execution pending appeal under Order 42 rule 6(2)

Holding

The application was brought without delay, but the applicant failed to demonstrate substantial loss and did not address security for due performance of the decree; stay was refused.

Reasoning

The court applied the twin tests of Order 42 rule 6(2): substantial loss and security for due performance. The applicant only argued that water and electricity had been disconnected, without showing what substantial loss would result. No security was offered and no repayment proposal had been made despite admitted rent arrears exceeding Kshs.3,700,000/-. The landlord had been deprived of legitimate income, so equity did not favour the applicant.

p. 8
02

Whether there remained anything capable of being stayed

Holding

Nothing remained to stay because the 3rd defendant had already levied distress pursuant to the proclamation notice dated 29th May, 2026.

Reasoning

The court found that distress had been levied on 23rd July, 2026 as admitted in the 1st defendant's replying affidavit. The relief sought was therefore overtaken by events, and the related notices of motion dated 14th July, 2026 and 30th June, 2026 were both spent.

p. 9

Legal principles established

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  • For stay of execution pending appeal under Order 42 rule 6(2), the applicant must prove substantial loss, bring the application without unreasonable delay, and give security for the due performance of the decree
  • A party who cannot demonstrate substantial loss and has not offered security or repayment proposals cannot obtain stay, particularly where the successful party stands deprived of legitimate income

Court orders

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  1. 1.The notice of motion dated 14th July, 2026 is spent/dismissed.
  2. 2.The notice of motion dated 30th June, 2026 is spent.
  3. 3.The plaintiff/applicant to bear the costs of both applications.
Jurisdiction invoked
Order 42 rule 6(2) of the Civil Procedure Rules (stay of execution pending appeal)

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, "Hanashim Investment Limited v Shah and Patel Industries Limited & 2 others (Environment and Land Case E252 of 2026) [2026] KEELC 5104 (KLR)", Case Analysis (2026). ELC LC No. E252 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5104/eng@2026-07-31

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