Luxury Leather Kenya Ltd v Yusuf & 2 others (Sued as Administrators of the Estate of Anwar Hussein Yusuf-Sumar - Deceased)
The bottom line
#A Kenyan court refused to pause a tenant's eviction because the tenant owed over a year's rent and offered no security for the debt.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Applicant has satisfied the statutory conditions for the grant of a stay of execution under Order 42 Rule 6 of the Civil Procedure Rules, 2010.
- 2.Whether the Applicant's equitable conduct specifically the unrefuted default in remitting rent arrears disentitles it to the discretionary relief of stay of execution.
- 3.Who shall bear the costs of this Application?
Key legal issues
#Substantial loss under Order 42 Rule 6(2)
Applicant failed to demonstrate substantial loss; bare assertions of business disruption without evidence of financial ruin or the decree-holder's inability to refund do not suffice.
The decree comprised vacant possession and monetary orders for arrears and mesne profits. The Applicant offered only general assertions of disruption, goodwill loss and clientele loss, with no evidentiary material showing how execution of the monetary obligations and lawful termination would cause substantial loss, nor that the Respondents could not refund decretal sums if the appeal succeeded.
Security for due performance
The mandatory condition of offering security was entirely ignored by the Applicant.
Order 42 Rule 6(2)(b) requires an applicant to provide security for the due performance of the decree. The Applicant neither offered nor deposited any security for the decretal amount or outstanding arrears, choosing to ignore this mandatory statutory condition, which independently justified refusal of the stay.
Clean hands and equitable conduct
The Applicant's unrefuted default in paying rent for over a year disentitled it to the equitable relief of stay.
The 1st Respondent produced a Statement of Account evidencing over a year of rent default; the Applicant filed no further affidavit or submissions to rebut it. A tenant seeking to remain in possession while refusing to pay undisputed rent unjustly enriches itself at the landlord's expense and comes to equity with unclean hands.
Costs
Costs follow the event; the unsuccessful Applicant must pay the Respondents' costs.
Section 27 of the Civil Procedure Act mandates that costs follow the event unless the Court orders otherwise for good reason. The Supreme Court in Jasbir Singh Rai reaffirmed this principle. As the Notice of Motion was wholly unsuccessful, the Respondents were entitled to costs.
Legal principles established
#- The three cumulative conditions for stay under Order 42 Rule 6(2) are substantial loss, absence of unreasonable delay, and security for due performance of the decree.
- A defaulting tenant who occupies commercial property without paying rent approaches the Court with unclean hands and is disentitled to the equitable discretion of stay.
Court orders
#- 1.The Notice of Motion Application dated 23/06/2026 is dismissed in its entirety.
- 2.The interim orders of stay of execution, if any, granted or subsisting pending the determination of this Application are vacated.
- 3.The costs of this Application are awarded to the Respondents.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Business Premises Rent Tribunal, Thika
- BPRT No. E003 of 2026
- Jurisdiction invoked
- Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules, 2010; Sections 1A, 1B, 3A & 63(e) of the Civil Procedure Act (Cap 21); Articles 50(1) and 159(2)(d) & (e) of the Constitution, 2010
Relief refused
#Stay of execution of the BPRT Ruling and Order in Thika BPRT Case No. E003 of 2026 pending appeal
Applicant failed to demonstrate substantial loss, provided no security, and approached the Court with unclean hands due to unrefuted rent default
Costs of the Application
Application wholly unsuccessful; costs follow the event under Section 27 of the Civil Procedure Act
Costs
The costs of this Application are awarded to the Respondents.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The Notice of Motion Application dated 23/06/2026 is hereby dismissed in its entirety.
The interim orders of stay of execution, if any, granted or subsisting pending the determination of this Application are hereby vacated.
The costs of this Application are awarded to the Respondents.
Stay of execution is designed to preserve the subject matter of an appeal, not to provide a defaulting tenant with an avenue for commercial exploitation without compensation.
The Applicant's unrefuted failure to pay rent disentitles it to the equitable discretion of this Court.
Issues in the judgment
#Applicant's submissions dated 17/06/2026 predate the Notice of Motion dated 23/06/2026 they support.
Tenancy termination date appears garbled as '4t/01/2026'.
Godown referred to as 'Godown No. E' in Respondents' submissions, inconsistent with 'Godown No. 5' elsewhere.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Luxury Leather Kenya Ltd v Yusuf & 2 others (Sued as Administrators of the Estate of Anwar Hussein Yusuf-Sumar - Deceased)", Case Analysis (2026). Environment and Land Appeal E066 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5483/eng@2026-09-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.