Regina Wanjiku Kimani T/A Reones Beauty and Cosmetics v Paul Ndungu Njihia & Samuel Kagoro Njihia

dated 10th March 2026 pending the hearing and determination of the application. c) THAT pending the hearing and determination of this Appeal, this Honourable Court be pleased to grant a stay of execution of the Ruling/Decree of the Business Premises Rent Tribunal at Nairobi, Tribunal Case No. E1346 of 2025: Regina Wanjiku Kimani T/A Reones Beauty and Cosmetics Vs Paul Ndungu Njihia & Samuel Kagoro Njihia dated 10th March 2026. d) THAT the Applicant be allowed to deposit the rent in question in a joint interest earning account or in court pending the hearing and determination of the Appeal. e) The court be pleased to issue any other Orders as it deems fit f) That the costs of the application be provided for. 2. The Application is supported by the annexed supporting affidavit of the Applicant who deponed that she was dissatisfied with the ruling of the BPRT and has since filed a Memorandum of Appeal, that the Respondent might proceed with the execution of the orders issued on 10th March 2026 which will cause her irreparable harm. Furthermore, she is apprehensive that unless the ruling is stayed, the intended appeal will be rendered nugatory. 3. The Respondents opposed the application in a replying affidavit sworn by the 2nd Respondent. He deponed that the Applicant had not demonstrated substantial loss that she was likely to suffer but was instead seeking to delay the execution of a lawful decree after ELCLA E046 OF 2026 R 2

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the tribunal litigated on the matters raised and ruled in favour of the Respondents. That further the Applicant had neither offered security for due performance of a decree. 4. The Applicant filed a further affidavit where she deponed that the tribunal ruled that she was in arrears of rent which arrears are contested since the Respondents have not produced a proper statement of account to back up their claim for arrears. That further substantial loss had been demonstrated since her business location depended on a certain clientele and good will which if lost cannot be compensated by monetary damages. 5. The application was canvassed by way of written submissions with the Applicant filing submissions dated 1 st July 2026 whereas the Respondents filed submissions dated 5th July 2026. Applicant/Appellant’s submissions 6. The Appellant submitted that she had met the conditions for stay as in Order 42 Rule 6 of the Civil Procedure Rules. On the issue of substantial loss, she indicated that having been in operation in the premises, she had built substantial goodwill, established a loyal customer base, and that eviction would destroy what she had used as a means of livelihood relying in the case of) Njeru (Suing as the Legal Representative and/or Substitute of the Late Rufus Njeru Kanambu) -Vs- Solomon [2026] KEELC 3156 (KLR ELCLA E046 OF 2026 R 3

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On the issue of security for due performance she indicated that she is ready and willing to comply with any conditions that may be imposed by the Court and expressed willingness to continue paying rent pending determination of the Appeal. On whether the application had been brought without delay she indicated she filed seven days after the said ruling hence within reasonable time Respondents ‘submissions 7. Counsel submitted on the provisions of Order 42 rule 6(2) of the Civil Procedure Rules. He indicated that the Applicant was to demonstrate substantial loss which they had not and that their argument that the Applicant will suffer irreparable loss were mere allegations as the execution of the tribunal orders does not amount to loss. He submitted that no security had been given for due performance of a decree. He further submitted that the appeal would not be rendered nugatory, it depends on whether or not what is sought to be stayed or restrained, if allowed to happen is reversible, or if not reversible, whether damages will reasonably compensate the party aggrieved and in this case the appeal being a monetary decree then the issue of it being rendered nugatory does not suffice quoting the case of Starnely Kangethe Kinyanjui -Vs- Tony Ketter&5 other (2013)eKLR.) 8. On the issue of the appeal being arguable, counsel reiterate the contents of his replying affidavit that the issues raised had bene ELCLA E046 OF 2026 R 4

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determined by the tribunal making the application an abuse of th court process since a decision had already been rendered Analysis and determination 9. 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. 10. The law governing the grant of orders for a stay of execution pending appeal is codified 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— a) the court is satisfied 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. 11. 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 ELCLA E046 OF 2026 R 5

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corner stone of both jurisdictions for granting a stay. That is what has to be prevented. Therefore, without this evidence it is difficult to see why the Respondents should be kept out of their money.” 12. The Applicant bears the burden of showing the substantial loss she is likely to suffer if no stay is ordered. Regarding substantial loss, it is not disputed that the Applicant has a business operating in the suit premises that she stands to lose goodwill if she is evicted from the premises. The Respondents on the other hand contend that the loss of goodwill as alleged can be compensated by way of monetary damages. I agree with the Respondents that the Applicant has failed to show that the loss of goodwill and business cannot be quantified in monetary terms. There is no gainsaying that loss of business and goodwill, are capable of being quantified in monetary terms, that if duly quantifiable and pleaded, the same are equally payable in monetary terms. Other than the foregoing, it is also worthy to outline that the Respondents herein shall be in a position to pay whatever damages subject to proof. For good measure, the Applicant has not pleaded to impugn the financial capability of the Respondents to meet damages/compensation, if any; that may be due and awardable in the event the appeal succeeds. 13. On security, Order 42 Rule 6(2)(b) of the Civil Procedure Rules is couched in mandatory terms. In Focin Motorcycle Co. Limited -Vs- Ann Wambui Wangui & another [2018] KEHC 8358 ELCLA E046 OF 2026 R 6

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(KLR), the court held that: -“In Arun C Sharma -V- Ashana Raikundalia T/A Rairundalia & Co. Advocates Justice Gikonyo the Court stated that: “The purpose of the security needed under Order 42 is to guarantee the due performance of such decree or order as may ultimately be binding on the Applicant. It is not to punish the judgment debtor………. Civil process is quite different because in civil process the judgment is like a debt hence the Applicants become and are judgment debtors in relation to the Respondent. That is why any security given under Order 42 rule 6 of the Civil Procedure Rules acts as security for due performance of such decree or order as may ultimately be binding on the Applicants. I presume the security must be one which can serve that purpose’’ The Applicant has not offered security for due performance of a decree and willingness to pay rent does not amount to security On delay, the ruling was delivered on 10th March 2026 and the application filed on 17th March 2026. This court is satisfied that the application was filed without unreasonable delay. Filing an application timeously without fulfilling the other conditions as to whether an Applicant will suffer substantial loss or offering security for the due performance of the decree, does not give the Applicant a free ticket to obtaining the order of stay of execution. In Carter & Sons Ltd vs Deposit Protection Fund Board & 2 Others Civil Appeal No. 291 of 1997, the court held as follows:“the mere fact that there are strong grounds of appeal ELCLA E046 OF 2026 R 7

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would not, in itself, justify an order for stay. . .the Applicant must establish a sufficient cause; secondly the court must be satisfied that substantial loss would ensue from a refusal to grant a stay; and thirdly the Applicant must furnish security, and the application must, of course, be made without unreasonable delay. 14. The Applicant has not persuaded the court that she will suffer substantial loss if an order of stay of execution is not granted. She has further not demonstrated the loss that she will suffer if the order is not granted. Mere assertions of substantial loss is not enough as there has to be documentary evidence to support such a claims. 15. On the perusal of the Memorandum of Appeal, the intended appeal does not raise arguable points of law or fact. The issues raised were litigated upon by the tribunal thus, without delving into the merits of the appeal, the chances of the appeal succeeding are limited. 16. For the reasons and analysis, which have been outlined in the body of the ruling, I come to the conclusion that the application dated the 17th March 2026 lacks merit and is hereby dismissed. The Costs will be in the main cause. It is so ordered. DATED, SIGNED and DELIVERED virtually at NAIROBI on this 24th day of ELCLA E046 OF 2026 R 8

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September 2026. MOHAMMED N. KULLOW JUDGE Ruling delivered in the presence of: Ms. Kaithurima for the Appellant/Applicant Mr. Musila for the Respondent Ms. Mwangi Court Assistant ELCLA E046 OF 2026 R 9

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