Luxury Leather Kenya Ltd v Yusuf & 2 others (Sued as Administrators of the Estate of Anwar Hussein Yusuf-Sumar - Deceased)

2. The Application is brought under Articles 50 (1), and 159 (2) (d), & (e) of the Constitution, 2010, Order 42 Rule 6, & Order 51 Rules (1), of the Civil Procedure Rules, 2010, Sections 1A, 1B, 3A & 63 (e) of the Civil Procedure Act Cap 21 and all other enabling provisions of the law seeking the following: i. Spent. ii. That the Honorable Court be pleased to stay the execution of the Ruling and Order in Thika BPRT Case No. E003 of 2026 pending the hearing and determination of the Application herein. iii. That the Honorable Court be pleased to stay the execution of the Ruling and Order in Thika BPRT Case No. E003 of 2026 pending the hearing and determination of the appeal led against the Ruling of Honourable P. Kitur delivered on 18/06/2026. iv. That the Applicant be awarded the costs of this Application. 3. The Application is based on the grounds on the face of it and the Supporting Adavit of Edmond Louis Chesneau sworn on even date. 4. The deponent Edmond Louis Chesneau, a Director of the Applicant company, deposeth that the Applicant entered into occupation of Godown No. 5 situated on Thika Municipality Block 9/522 (L.R. No. 4953/1988) pursuant to a Lease Agreement dated 1/01/2021. Following unlawful eviction threats by the Respondents without color of right or notice, the Applicant instituted proceedings at the Business Premises Rent Tribunal. However, by a Ruling delivered on 18/06/2026, which is annexed to the Adavit and marked as “ELC-1”, the Honourable P. Kitur dismissed the Applicant’s complaint dated 16/02/2026 and Notice of Motion dated 5/05/2026, terminated the tenancy eective 4t/01/2026, ordered payment of rent arrears amounting to Kshs. 925,191 alongside mesne prots of Kshs. 100,000 monthly, and directed vacant possession by 30/06/2026 under threat of eviction and distress for rent. 5. Being aggrieved by the said determination, the Deponent states that the Applicant has preferred an appeal to this Honourable Court, pointing out that the Tribunal failed to grant a window for stay of execution despite imposing stringent timelines within the month of Judgment. Based on legal advice from Counsel on record, the Deponent verily believes that the intended appeal is arguable and highly meritorious, and that unless this Court certies the application urgent and grants an interim stay of execution, the Respondent will proceed to execute the impugned Ruling, thereby rendering the intended appeal nugatory and causing irreparable business loss to the Applicant that cannot be compensated in damages. Furthermore, the Deponent asserts that the Respondents will suer no prejudice that cannot be adequately compensated by an award of costs, making it just, equitable, and expedient in the interest of justice for stay orders to issue pending the hearing and determination of the appeal. 6. The Application is opposed. The 1st Respondent led a Replying Adavit sworn on 13/07/2026. The 1st Respondent and an Administrator of the Estate of the late Anwar Hussein Yusuf-Sumar, states that the Applicant's Notice of Motion dated 23/06/2026 is misconceived, devoid of merit, and fails to satisfy the statutory threshold for stay of execution under Order 42 Rule 6 of the Civil Procedure Rules. The Deponent states that the Business Premises Rent Tribunal rendered a well-reasoned Ruling on 18th June, 2026 after establishing that the Applicant was duly served with a valid statutory notice of termination, which it failed to challenge within the prescribed period. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5483/eng@2026-09-17 2

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7. Asserting that the Applicant has merely expressed dissatisfaction without demonstrating any error of law or fact or showing substantial loss, the Deponent deposeth that the Applicant continues to occupy the suit premises while defaulting on rent, thereby causing severe nancial prejudice to the Respondents who must service an ongoing loan charged on the property. In support of this contention, the Deponent annexes a copy of the Statement of Account showing the accrued and outstanding rent arrears, which is marked as "A1". 8. The Deponent further deposes that the Applicant has neither oered nor provided security for the due performance of the decree, using the intended appeal merely as a dilatory tactic to unjustly enrich itself at the Respondents' expense. Consequently, the Deponent asserts that an appeal does not automatically operate as a stay of execution and that it would be grossly inequitable to allow the Applicant to retain possession without meeting its undisputed contractual obligations. In the alternative, the Deponent prays that should this Honourable Court be inclined to grant a stay of execution pending appeal, such order ought to be strictly conditional upon the Applicant immediately liquidating all outstanding arrears and decretal sums, as well as continuously remitting monthly user charges as they fall due. Ultimately, the Deponent avers that the application lacks merit, seeks to deprive the Respondents of the fruits of a lawful Judgment, and should be dismissed with costs in the interest of justice. 9. When the parties appeared in Court on 22/07/2026 the parties informed the Court that they had led and exchanged written submissions. The Applicant led their submissions dated 17/06/2026 whereas the Respondent led theirs dated 21/07/2026. 10. In their written submissions the Applicant has stated that he has anchored the application on the provisions of Order 42 Rule 6 of the Civil Procedure Rules, 2010, invoking the Court's statutory discretion to preserve the subject matter of the suit and prevent the defeat of justice. That guidance is drawn from the legal principle enunciated in Premier Industries Limited v Stephen Kilonzo Matiliku [2021] eKLR, which underscores that the cornerstone of the Court's jurisdiction under Order 42 Rule 6 is the demonstration of substantial loss, balancing the protection of the decree holder's rights against the imperative of preventing irreparable harm to the appealing party. 11. In establishing the threshold for granting stay of execution, the Applicant relies heavily on the case of Kenya Shell Ltd v Kibiru & Another [1986] KLR 410, alongside the foundational English precedent Wilson v Church (No. 2) (1879) 12 ChD 454, emphasizing that the Court must address its mind to whether refusing a stay would render the intended appeal purely nugatory. It is submitted that the impugned orders require the Applicant to vacate and surrender possession of Godown No. 5 from which it has actively operated its commercial enterprise since 2021 within the very month of Judgment delivery, exposing its tools of trade to distress and causing severe disruption to business, loss of goodwill, loss of clientele, and interruption of contractual obligations. The Applicant further cites Antoine Ndiaye v African Virtual University [2015] eKLR (incorporating the Ugandan authority Sewankambo Dickson v Ziwa Abby HCT-00-CC MA 0178 of 2005) to demonstrate that substantial loss is a qualitative concept referring to any real and worth-value loss as opposed to a nominal one, asserting that executing the eviction before the appeal is ventilated will irrevocably destroy the substratum of the appeal. 12. Invoking the decision of the Court of Appeal in UAP Insurance Company Ltd v Michael John Beckett [2004] eKLR, the Applicant submits that it has met the requisite legal requirements by establishing that it has an arguable, non-frivolous appeal on the face of its Memorandum of Appeal, particularly regarding the harsh and unviable timelines imposed by the Tribunal. The Applicant contends that it approached this Honourable Court without delay, that the Respondents stand to suer no prejudice https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5483/eng@2026-09-17 3

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that cannot be compensated by an award of costs, and that if a stay is denied, restoration of possession will be rendered impossible, turning the appeal into a mere academic exercise. Consequently, the Applicant prays that the Application dated 23/06/2026 be allowed as prayed so that the appeal may be heard and determined on its merits in the interest of justice. 13. In their submissions the Respondents contend that the application is wholly misconceived and fails to satisfy the mandatory, cumulative conditions for granting stay of execution under Order 42 Rule 6 of the Civil Procedure Rules, 2010. Invoking the Court of Appeal authority in Kenya Shell Limited v Benjamin Karuga Kibiru & Another [1986] KLR, the Respondents argue that demonstrating substantial loss is the cornerstone of such an application. They further rely on Maboneng Limited t/ a Maboneng Lounge & Restaurant v Le Blanc Company Limited & another [2026] KEELC 4525 (KLR) for the proposition that judicial discretion to grant a stay must balance the competing rights of the parties without unnecessarily depriving a successful litigant of the fruits of a lawful Judgment. 14. The Respondents submit that the Applicant has relied on mere bare assertions of eviction and an arguable appeal without tendering concrete evidence of substantial loss. Citing Hannah Wangari Njuguna v Joseph Ngware, Michael Njoroge & Frederick Kinuthia t/a Jofremic Investment [2026] KEELC 685 (KLR), the Respondents emphasize that monetary obligations do not constitute substantial loss unless the Applicant proves that the decree holder would be unable to refund the decretal sum if the appeal succeeds. Moreover, the Respondents highlight that stay of execution is an equitable remedy requiring an Applicant to approach the Court with clean hands. Applying the ratio in Hannah Wangari Njuguna [supra], the Respondents submit that an Applicant who continues to occupy commercial property specically Godown No. E on Thika Municipality Block 9/522 without paying rent for over a year approaches the Court with unclean hands and unjustly enriches itself at the landlord's expense, particularly where the Respondents continue to service a nancial loan secured over the suit property without receiving rental income. 15. Without prejudice to the primary prayer for outright dismissal, the Respondents submit that should the Court be inclined to grant a stay of execution, such order must be strictly conditional to preserve the subject matter without conferring an unfair commercial advantage. In accordance with Order 42 Rule 6, the Applicant ought to be ordered to immediately clear all outstanding rent arrears, continue remitting the monthly contractual rent of Kshs. 100,000 for the duration of its occupation, and furnish security for the due performance of the decree. Finally, invoking the Supreme Court Ruling in Jasbir Singh Rai & Others v Tarlochan Singh Rai & 4 Others [2014] eKLR on the principle that costs follow the event, the Respondents pray that the Application dated 23/06/2026 be dismissed with costs to the Respondents. Issues for Determination 16. This Ruling determines the Notice of Motion Application dated 23/06/2026, wherein the Applicant seeks orders for stay of execution of the Ruling and Order of the Business Premises Rent Tribunal in Thika BPRT Case No. E003 of 2026 delivered by Honourable P. Kitur on 18/06/2026, pending the hearing and determination of the intended appeal. Having considered the Notice of Motion, the Supporting Adavit, the Replying Adavit, and the written submissions led by both parties, the core issues arising for determination are: i. Whether the Applicant has satised the statutory conditions for the grant of a stay of execution under Order 42 Rule 6 of the Civil Procedure Rules, 2010. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5483/eng@2026-09-17 4

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ii. Whether the Applicant’s equitable conduct specically the unrefuted default in remitting rent arrears disentitles it to the discretionary relief of stay of execution. iii. Who shall bear the costs of this Application? Analysis and Determination 17. The power of the Court to grant a stay of execution pending appeal is anchored under Order 42 Rule 6 (2) of the Civil Procedure Rules, 2010. The Rule stipulates three cumulative conditions that an Applicant must satisfy: demonstrating that substantial loss may result unless the order is made, establishing that the application has been led without unreasonable delay, and oering or providing such security for the due performance of the decree as may ultimately be binding. 18. The cornerstone of this statutory power is the prevention of substantial loss. In Silverstein v. Chesoni [2002] 1 EA 296, the Court of Appeal rearmed this fundamental principle, holding verbatim that: “ The issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory." 19. Similarly, in Mukuma v. Abuoga [1988] KLR 645, the Court of Appeal expressed what constitutes substantial loss, stating verbatim: “ Substantial loss is what has to be prevented by preserving the status quo because such loss would render the Appeal nugatory." 20. In evaluating substantial loss, Black’s Law Dictionary (11th ed. 2019) denes substantial loss as an actual, signicant, and material loss, as distinguished from a nominal or technical injury. Furthermore, Halsbury’s Laws of England (4th Edition, Vol. 17, para 455) observes that the Court’s discretion to stay execution must be exercised to prevent injustice, but execution of a decree is not to be stayed lightly unless compelling, concrete evidence demonstrates that non-intervention would result in irreversible prejudice. 21. In the present case, the Applicant relies on general assertions that eviction from Godown No. 5 will cause business disruption, loss of goodwill, and clientele. However, the decree sought to be stayed comprises both an order for vacant possession and a monetary decree for rent arrears of KShs. 925,191, alongside mesne prots of KShs. 100,000 monthly. The Applicant has failed to place any evidentiary material before this Court demonstrating how the execution of these monetary obligations and lawful termination of tenancy constitutes substantial loss. Bare assertions of distress and eviction without establishing nancial ruin or the Respondents' inability to refund decretal sums upon a successful appeal do not satisfy the statutory threshold. 22. At the same time, Order 42 Rule 6 (2) (b) requires the Applicant to provide security for due performance. The Applicant has neither oered nor deposited any security for the decretal amount or the outstanding arrears, choosing to ignore this mandatory statutory condition entirely. 23. Stay of execution pending appeal is fundamentally an exercise of judicial discretion grounded in equity. A key maxim of equity is that "he who comes to equity must come with clean hands." 24. In the Replying Adavit, the 1st Respondent produced a Statement of Account as Annexure "A1" evidencing that the Applicant has defaulted on rent payments for over a year and accumulated https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5483/eng@2026-09-17 5

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substantial arrears. Crucially, the Applicant did not le a Further Adavit or tender any submissions to deny, rebut, or challenge this claim. The assertion that the Applicant owes and has failed to pay contractual rent for its continued occupation of the suit premises therefore stands completely unrefuted. 25. An Applicant who seeks the Court's equitable protection to remain in possession of commercial property while refusing to meet its undisputed contractual obligation to pay rent approaches the Court with unclean hands. In Patrick Mukiri Kabundu v. Miliki Limited [2016] eKLR, the Court of Appeal addressed the equitable standing of defaulting tenants seeking stay orders, observing: “ The Applicant comes to Court seeking an equitable remedy of stay of execution... It is a well settled principle of equity that he who comes to equity must come with clean hands. The Applicant has been in occupation of the suit premises without paying rent... Having come before this Court with unclean hands, the Applicant is not deserving of the discretionary orders sought." 26. Similarly, in Phares Ndung’u Chege & Another v. Linnet Wairimu Mukuha & 2 Others [2020] eKLR, the Court of Appeal armed the High Court's refusal to grant a stay to a tenant in default, stating that: “ ... the Applicant had not paid rent or arrears ... the Applicant is a man who comes to Court with unclean hands ... who has not paid rent arrears." 27. By retaining possession of Godown No. 5 without paying rent or providing security, the Applicant is unjustly enriching itself at the expense of the Respondents, who continue to incur nancial burdens servicing a loan charged on the property. 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. 28. Section 27 of the Civil Procedure Act Cap 21 mandates that costs follow the event unless the Court for good reason orders otherwise. The Supreme Court of Kenya in Jasbir Singh Rai & Others v. Tarlochan Singh Rai & 4 Others [2014] eKLR rearmed this statutory mandate, holding verbatim: “ ... the award of costs would normally be guided by the principle that 'costs follow the event'." 29. As the Applicant’s Notice of Motion dated 23/06/2026 is wholly unsuccessful, the Respondents are entitled to the costs of this Application. 30. In the premises, the Applicant’s Notice of Motion dated 23/06/2026 is unmerited and fails. The Court makes the following orders: 31. i. The Notice of Motion Application dated 23/06/2026 is hereby dismissed in its entirety. ii. The interim orders of stay of execution, if any, granted or subsisting pending the determination of this Application are hereby vacated. iii. The costs of this Application are awarded to the Respondents. Orders Accordingly. DATED, SIGNED AND DELIVERED THROUGH MICROSOFT TEAMS IN THIKA ON THIS 17TH DAY OF SEPTEMBER 2026. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5483/eng@2026-09-17 6

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……………………… MOGENI J JUDGE In the presence of:Ms. Ndwiga for the Appellant/Applicant Miss Ndung’u for the 1st, 2nd and 3rd Respondents Mr. Melita - Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5483/eng@2026-09-17 7

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