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ELCDismissedNot stated in the judgment (arising from BPRT Case No. E904 of 2025)· [2026] KEELC 5232 (KLR)

Mutua v Ephamils Enterprises Limited & another (Environment and Land Appeal E261 of 2025) [2026] KEELC 5232 (KLR)

Environment and Land Court
6 August 2026
1,821 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a ruling by Mohammed N. Kullow, J, on a notice of motion dated 5th December 2025 by Judy Wayua Mutua, the Applicant/Appellant, seeking stay of execution of a ruling of the Business Premises Rent Tribunal (Hon. Mike Makori, Magistrate) delivered on 10th November 2025 in BPRT Case No. E904 of 2025, pending appeal, together with an interim injunction against eviction from Shop No. 1 on L.R. No. 209/11430, Nairobi West, and police assistance to enforce the orders. The Respondents opposed, arguing the Applicant sought to relitigate issues already determined by the tribunal - namely that the termination notice dated 30th June complied with Sections 4(2), 4(4), 4(5) and 7(1)(g) of Cap 301 and that the landlord's intention to occupy was genuine - and that the Applicant had shown no substantial loss and offered no security. The court framed a single issue: whether the application for stay was merited. Applying Order 42 Rule 6(1) and (2) of the Civil Procedure Rules, the court held that substantial loss is the cornerstone of a stay application; loss of goodwill and business is quantifiable in monetary terms, and the Applicant neither pleaded the Respondents' inability to pay damages nor produced documentary evidence of loss. Continuing payment of rent did not amount to security for due performance of the decree. Although the application was filed without unreasonable delay, satisfying only one condition did not entitle the Applicant to a stay. The application was dismissed with costs in the main cause.

Key legal issues

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01

Whether the Applicant demonstrated substantial loss to justify a stay of execution pending appeal

Holding

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

Reasoning

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.

p. 3
02

Whether the Applicant offered security for due performance of the decree

Holding

No security was offered; continued payment of rent does not constitute security under Order 42 Rule 6(2)(b)

Reasoning

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.

p. 4
03

Whether the application was filed without unreasonable delay

Holding

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

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The application dated 5th December 2025 is dismissed
  2. 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

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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, "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.