Joseph Gitonga v Teresia Wanjiku Njoroge
The bottom line
#The Environment and Land Court in Mombasa refused to pause a Kshs. 1.45 million rent decree because the tenant showed no real loss and offered no security.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether orders of stay of execution pending appeal should issue
Key legal issues
#Whether substantial loss was demonstrated
Not demonstrated; mere execution does not constitute substantial loss
The court found the applicant produced no evidence of the substantial loss he would suffer if execution of the Kshs. 1,450,000 decree proceeded. Execution is a lawful process, and following Kenya Shell v Kibiru, without evidence of substantial loss the successful litigant should not be kept out of the fruits of judgment.
Whether the application was made without unreasonable delay
Requirement satisfied
The ruling challenged was delivered on 7th April 2026 and the application filed on 13th July 2026. The court found no evidence of unreasonable delay and held this limb of Order 42 Rule 6(2) satisfied, though it alone was insufficient to justify a stay.
Whether security for the due performance of the decree was furnished
No security offered; requirement not satisfied
The court held that security balances the applicant's right to pursue the appeal against the respondent's right to enjoy the fruits of judgment. The applicant offered none, compounding his failure on substantial loss and leaving the threshold unmet.
Legal principles established
#- Execution is a lawful process and its mere commencement or likelihood does not by itself constitute substantial loss for purposes of stay of execution pending appeal
- An applicant for stay must demonstrate absence of unreasonable delay, substantial loss, and willingness to furnish security, and the court must balance the interests of both parties
Court orders
#- 1.The Notice of Motion dated 13th July 2026 is dismissed
- 2.Costs of the application awarded to the Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Business Premises Rent Tribunal at Mombasa
- BPRT E146 of 2025 and BPRT E353 of 2025
- Jurisdiction invoked
- Appellate jurisdiction of the Environment and Land Court over the Business Premises Rent Tribunal; stay of execution sought under Order 42 Rule 6 of the Civil Procedure Rules
- Consolidated with
- BPRT E146 of 2025, BPRT E353 of 2025 (consolidated before the Business Premises Rent Tribunal, Mombasa)
Relief refused
#Stay of execution of the ruling and orders of the Business Premises Rent Tribunal dated 7th April 2026 pending the hearing and determination of the application and the appeal
Applicant failed to establish substantial loss and offered no security; only the no-delay limb was satisfied
Costs
Application dismissed with costs to the Respondent
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.
Consequently, the Application dated 13th July 2026 id dismissed with costs to the Respondent. Orders accordingly.
The fact that execution may proceed against him does not constitute substantial loss, as execution is a lawful process.
In the circumstance the Applicant has not met the threshold for grant of stay of execution pending Appeal.
...the purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory.
Issues in the judgment
#Typographical error in the final order: 'id dismissed' instead of 'is dismissed'
Respondent's name spelled inconsistently ('Teresia' vs 'Teresiah Wanjiku Njoroge')
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Gitonga v Teresia Wanjiku Njoroge", Case Analysis (2026). ELCLA/E014/2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5904/eng@2026-09-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.