Agrawal & another v Mugo (Land Case Appeal E050 of 2026)

2. The application was premised on grounds as in the supporting adavit by the 1st Applicant. He deponed that they were aggrieved by the judgement and had led this appeal on reasons that the judgement was unfair to ask the Appellants to vacate the premises being that they are the landlord who have been in operation on the premises way before they entered into a tenancy relationship with the Respondent. 3. That the tribunal had come to the conclusion that the Applicant had obstructed the Respondent’s business without carrying out a site visit to establish whether the Applicant’s tent indeed obstructed the Applicant’s business 4. He deponed that the Applicants are willing to deposit the entire decretal sum ordered by the tribunal as security for costs and asked for the stay to be allowed as they are apprehensive of execution if the orders are not granted and grant of the same will not prejudice the Respondent. 5. The Respondent in opposing the application swore a replying adavit on the 17th April 2026.She deponed that the Appellants had not shown what substantial loss would be occasioned to them should the orders of stay not issue. That further the Applicants had not complied with the earlier orders of the tribunal to remove the tent that was obstructing the Respondent’s business and that the application had not be made in good faith which challenged the integrity of the entire appeal. 6. The Appellants led a further adavit in which he deponed that they had complied with the removal of the tent that was allegedly blocking the Respondent’s business evidenced by attaching photographs to the adavit. He further deponed that they had oered security for due performance of a decree discrediting the averments by the Respondent that none had been oered. Applicant/Appellant’s submissions 7. The Applicant led submissions dated 10th July 2026. Counsel for the Applicant reiterated the contents in the adavits and pointed out to the fact that the orders of stay were to preserve the subject matter of the property so that in the case of favourable orders, it would have prevented the Respondent from dealing with the property in a manner that would make the orders ineectual. Counsel further submitted that they had demonstrated substantial loss, that the application had been made without delay and that the oer for security of costs had also been given therefore in compliance with Order 42 Rule 6 of the Civil Procedure Rules. Counsel relied on the case of African Safari Club -Vs- Safe rentals Limited Court of Appeal at Nairobi Civil Application No Nai 53 of 2010 Respondents ‘submissions 8. Counsel submitted on the provisions of order 42 rule 6(2) of the civil procedure rules. He indicated that the Applicants were to demonstrate substantial loss which they had not and that their argument that the Applicants will suer as they will be forced out of the premises were false as the judgement only required them to move the tent to a dierent location so as not to obstruct the Respondent’s business. She further submitted that the photographic evidence produced did not shed any light on whether the Applicants had complied with the court’s orders and further it was inadmissible as it had not complied to the guidelines of producing electronic evidence in court as it lacked an electronic certicate. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5662/eng@2026-09-24 2

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9. On the issue for security for due performance of a decree, Counsel submitted that the Applicants oering the security for due performance of a decree was not a direct guarantee to issuance of stay of execution orders as the stay would put a halt to the entire judgement which was what the Applicants were seeking to continue frustrating the operations of the Respondent’s business. Counsel indicated in as much as stay is discretionary to the court, stay orders should only issue where the court had established that the requirements of Order 42 Rule 6(2) have been met and further be guided by the decision in Butt -Vs- Rent Restriction tribunal (1982) KLR 417 Analysis and determination 10. Having looked at the application, the responses thereto, the submissions and cited authorities, the issue for determination will be whether the application for grant of stay of execution is merited 11. The law governing the grant of orders for a stay of execution pending appeal is codied under Order 42 Rule 6 (1) and 2 of the Civil Procedure Rules. Sub Rule 2 reads; No order for a stay of execution shall be made under Sub-rule (1) unless— 12. a. the court is satised that substantial loss may result to the Applicant unless the order is made and that the application has been made without unreasonable delay; and b. Such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the Applicant. Substantial loss is the cornerstone of an application for stay. In Kenya Shell Limited -Vs- Benjamin Karuga Kibiru & another [1986] KECA 94 (KLR), the Court of Appeal held that: “If there is no evidence of substantial loss to the Applicant, it would be a rare case when an appeal would be rendered nugatory by some other event. Substantial loss in its various forms, is the corner stone of both jurisdictions for granting a stay. That is what has to be prevented. Therefore, without this evidence it is dicult to see why the Respondents should be kept out of their money.” 13. The Applicants bear the burden of showing the substantial loss they are likely to suer if no stay is ordered. This recognises that both parties have rights; the Appellants to their Appeal, including the prospect that it will not be rendered nugatory; and the decree holder to the decree, including the full benets under the decree. In balancing the two competing rights, the Court focuses on their reconciliation, which is not a question of discrimination. Regarding substantial loss, it is not disputed that the Applicant is the landlord in this case owing the fun park located at two rivers is a business operating in the suit premises. The Tribunal directed that the Appellant/Applicant to remove their tents or any other obstructive structure installed next to the Respondent’s business and prevented them and their agents from interfering with the peaceful quiet enjoyment of the Respondent peaceful occupation. The tribunal further indicated that the Applicants should pay the Applicant’s Ksh 334, 850/= for the unlawful interreference. 14. The Applicants have indicated that if execution occurs, they will be evicted outside the business premises which will be unfair to them as the landlord. A perusal through the impugned judgement clearly shows that the Applicants were asked to move the tent to a dierent location that would https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5662/eng@2026-09-24 3

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not obstruct the activities of the Respondent and not forced out of the premises. The Applicants contention of loss in this regard does not hold much weight as even going by the photographs that they have attached to their further adavit, if the situation is a sit is, the movement of the tents does not leave them with nowhere to operate their business rather they have shifted to a dierent area and I do not see any loss that has been occasioned to them. 15. The Respondent contends that the photographs cannot be used as they have not adhered to guidelines for production of electronic evidence, but in this case, they have also have not produced any evidence to show the situation on the ground and counter the evidence attached to the further, if anything, the photographs aid their case to show that the Applicants actually are still able to operate in the said premises and have not suered any losses. 16. The Respondent obtained a valid decree from the tribunal which is yet to be satised either in full or partially what is known is that the sums ordered to be paid have not been paid yet. I do not see why the Applicants should be willing to deposit security for due performance of a decree at the sum of Ksh.334,850/= and not want to settle the decretal sum to the Respondent as it is the same amount. They are raising the argument that the Respondent might not be able to pay should the appeal go in their favour. This is merely an assertion that has not been proved as they have not indicated the Respondent to be a person of no means unable to refund the decretal amount and as such, I also nd that this is not a justiable ground for stay. The principle that principle that execution of a lawful given decree does not automatically amount to substantial loss. A successful litigant is entitled to enjoy the fruits of his judgment. This principle was aptly stated in Machira T/A Machira & Co. Advocates v East African Standard (No.2) [2002] KLR 63, where the court observed that:“A successful party is entitled to the fruits of his judgment and should not be deprived of the same without just cause.” 17. Having considered all the circumstances, I nd that the Applicants/Appellants have not satisfactorily demonstrated substantial loss and in balancing the right of appeal with the Respondents’ right to enjoy fruits of their judgment, it is in the interest of justice that the discretion is exercised within the right ambits of the law. Final disposition Accordingly, I make the following orders; i. The Notice of Motion application dated 26th March 2026 lacks merit and is hereby dismissed ii. Costs of the application shall abide the outcome of the appeal. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 24TH DAY OF SEPTEMBER 2026. MOHAMMED N. KULLOW JUDGE Ruling delivered in the presence of: Ms. Gittii ........ for the Appellants/Applicants https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5662/eng@2026-09-24 4

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Mr. Simiyu ......... for the Respondent Ms. Mwangi .......... Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5662/eng@2026-09-24 5

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