Mutua v Ephamils Enterprises Limited & another (Environment and Land Appeal E261 of 2025) [2026] KEELC 5232 (KLR)
The bottom line
#A Nairobi tenant lost her bid to pause eviction pending appeal because she showed no substantial loss and offered no security.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant demonstrated substantial loss to justify a stay of execution pending appeal
The Applicant failed to demonstrate substantial loss; loss of goodwill and business is quantifiable in monetary terms and the Respondents' ability to pay damages was not impugned
The court accepted the Applicant operates a business whose goodwill would be lost on eviction, but agreed with the Respondents that such loss is quantifiable and compensable in damages. The Applicant did not plead that the Respondents lacked financial capacity to meet any damages awarded on appeal. Documentary evidence supporting the alleged substantial loss was absent, so the first limb of Order 42 Rule 6(2) failed.
Whether the Applicant offered security for due performance of the decree
No security was offered; continued payment of rent does not constitute security under Order 42 Rule 6(2)(b)
Order 42 Rule 6(2)(b) is mandatory. Its purpose is to guarantee due performance of the decree ultimately binding on the applicant, not to punish the judgment debtor. The Applicant's assertion that continuing to pay rent should suffice was rejected because rent payments are not security for due performance of the decree. The second limb therefore also failed.
Whether the application was filed without unreasonable delay
The application filed on 5th December 2025 following the 10th November 2025 ruling was made without unreasonable delay, but delay is only one condition and does not alone justify a stay
The court was satisfied the application was filed timeously. However, it held that fulfilling one condition does not give an applicant a free ticket to a stay; all conditions under Order 42 Rule 6(2) must be satisfied, and strong grounds of appeal alone do not justify a stay.
Legal principles established
#- Substantial loss is the cornerstone of an application for stay of execution; without evidence of it a stay will rarely issue
- Loss of business goodwill is capable of being quantified in monetary terms and therefore does not by itself establish substantial loss where damages would suffice
- Willingness to continue paying rent does not amount to security for due performance of a decree under Order 42 Rule 6(2)(b)
- Timely filing of a stay application without satisfying the other conditions does not entitle an applicant to a stay
- Mere assertions of substantial loss are insufficient; documentary evidence is required
Court orders
#- 1.The application dated 5th December 2025 is dismissed
- 2.Costs will be in the main cause
- On appeal from
- Business Premises Rent Tribunal
- BPRT Case No. E904 of 2025
- Jurisdiction invoked
- Appellate/supervisory jurisdiction over the Business Premises Rent Tribunal; stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mutua v Ephamils Enterprises Limited & another (Environment and Land Appeal E261 of 2025) [2026] KEELC 5232 (KLR)", Case Analysis (2026). Not stated in the judgment (arising from BPRT Case No. E904 of 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5232/eng@2026-08-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.