Mohamed v Muigai (Environment and Land Appeal E003 of 2026) [2026] KEELC 3338 (KLR)

6. The respondent deposes that the application and the supporting afidavit contradict the memorandum of appeal as to the nature of the tenancy, service of the termination notice, and willingness to pay rent as per the letter and replying afidavit annexed as CMM-(1). 7. The respondent deposes that the admission of rent which was due renders the orders of stay unmerited. The respondent deposes further that the applicant has not substantiated any loss to be occasioned to him, in view of the previous rulings, and only intends to delay the realization of the fruits of her judgment, more so when he did not oppose the termination notice and waited until the Tribunal endorsed and granted the eviction orders. 8. In a further afidavit sworn on 17/3/2026, the applicant deposes that after filing his application and directions given as per annexure marked AMA-(2), the respondent took advantage of the situation and sent auctioneers to the suit premises between 13/3/2026 and 16/3/2026, who did not serve him with a mandatory notice and proclamation before the intended eviction, and were fortunately not able to evict him form his business in Shop No. 18, on the suit premises. 9. The applicant relies on written submissions dated 17/3/2026. Reliance is placed on Order 42 of the Civil Procedure Rules, and in Kedoki & Another -vs- Nchoe [2025] KEELC 5012 [KLR]. 10. The respondent relies on written submissions dated 17/3/2026. Reliance is placed on Chris Munga N Bichange & 2 others -vs- Independent Electoral and Boundaries Commission & 2 others [2021] KEHC 6102 (KLR), Carter & Sons Ltd -vs- Deposit Protection Fund Board & Others Civil Appeal No. 291 of 1997, and Too -vs- Mbogo ELC Appeal No. E054 of 2025 [2026] KEELC 41 [KLR]. 11. The appeal before the court is brought by a memorandum of appeal dated 24/2/2024. It seeks to upset a ruling delivered on 30/1/2026 in BPRT Case No. E46 of 2025. 12. The reference had been brought by the respondent, who was seeking vacant possession. The Tribunal found that the notice of termination of tenancy had not been challenged and therefore had taken efiect. The applicant was therefore given 30 days to yield vacant possession, in default, to be evicted using licensed auctioneers. The applicant was also ordered to clear all the rent arrears. 13. Stay of execution is a discretionary power of the court. An applicant must meet the conditions set out under Order 42 of the Civil Procedure Rules: by filing the application without unreasonable delay, demonstrating substantial loss or damage, and lastly, ofiering security for the due realisation of the decree should the appeal not succeed. The law has not set out what amounts to maximum or minimum delay. It all depends on the circumstances of each case. Even a one-day delay could be unreasonable. 14. The ruling of the Tribunal was rendered on 30/1/2026. This application was filed on 25/2/2026, which was almost 5 days before the date it yielded vacant possession. The reasons for the delay are not explained. Equity assists the vigilant but not the indolent. 15. Substantial loss is the cornerstone of stay orders. It has to be demonstrated through cogent and tangible evidence. Execution is a lawful process. It does not amount to substantial loss. 16. A party, as held in Wangalwa -vs- Cheseto [2012] eKLR, has to show how the very essential core or substratum of the appeal will change or dissipate in the absence of stay orders and render the appeal nugatory. It is not enough to state that one is in occupation of the suit premises. 17. What is in contestation in this application is whether the appellant has justification to be on the business premises when he has no valid tenancy agreement, after the termination took efiect from 1/6/2025. The applicant has not seen fit to seek to regularise the tenancy. He has not provided a https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3338/eng@2026-06-03 2

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valuation report to show the investment he has in the suit premises, which risks dissipation or loss in the absence of the stay orders. 18. Empirical or scientific evidence of the projected loss or damage is what guides the court to establish whether there is substantial loss or not. Mere assertions that have not been backed by evidence will not sway the discretion of the court, as held in Samvir Trustees Limited -vs- Guardian Bank Limited [2000] eKLR. Suficient material showing exceptional circumstances where the successful party should not be denied the fruits of his judgment as held in Dodhia -vs- Wafula [2025] eKLR. 19. Regarding security held in Arun C. Sharma -vs- Ashana Raikundalia t/a Raikundalia & Co. Advocates [2014] eKLR, an applicant must ofier and provide the same as a show of good faith to guarantee due performance of the decree. 20. In the supporting afidavit to the application, the applicant is silent on the payment of the accrued rent arrears. He has not ofiered to clear them at all. The respondent has termed the application and the appeal as a delaying tactic. The appellant must show good faith and do equity, as much as he seeks the discretion of the court to be allowed to exercise his right of appeal. 21. In an application for a stay, the court is called upon to balance and weigh the scales of justice. The sword of justice cuts both ways. The applicant in this case has not discharged the burden. He came to court late. Evidence of substantial loss is missing. Security has not been ofiered at all. The applicant, in my view, does not deserve the orders sought. The application dated 25/2/2026 must therefore fail. It is dismissed with costs. 22. Orders accordingly. RULING DATED, SIGNED, VIA MICROSOFT TEAMS/OPEN COURT AT KITALE ON THIS 3RD DAY OF JUNE 2026. HON. C.K. NZILI JUDGE, ELC KITALE. RULING DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT KITALE ON THIS 3RD DAY OF JUNE 2026. In the presence of: Court Assistant - Matui No appearance for the parties at 10.25 am. HON. G.M. GITONGA JUDGE, ELC KITALE. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3338/eng@2026-06-03 3

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