keelc-2026-05949

e. That pending hearing and determination of this application, there be a stay of proceedings in BPRT/E957/2025) (consolidated with Nairobi BPRT/E957/2025) f. That pending the hearing and determination of the subject appeal, the Honourable Court be pleased to issue an order of rescission of the orders of the Business Premises Rent Tribunal issued on 11th September, 2025, requiring the Applicant to clear the accrued rent arrears in respect of the business premises herein and to continue paying rent for the ground shop. g. That pending hearing and determination of the subject appeal, the Honourable Court be pleased to issue an order suspending payment of rent for the ground shop and the entire business premises in general. h. That in addition to orders (f) and (g) above, pending the hearing and determination of the subject appeal, the Honourable Court be pleased to issue an order staying enforcement of rent obligations and all consequential lawful processes including distress for rent or eviction in respect of the business premises arising, resultant or owing from the ruling delivered on 29th March, 2026, by the Business Premises Rent Tribunal on the application dated 12th February, 2026, in Nairobi BPRT/E956/2025 (consolidated with Nairobi BPRT/E957/2025). i. That pending hearing and determination of the subject appeal, there be a stay of proceedings Nairobi BPRT/E956/2025 (consolidated with Nairobi BPRT/E957/2025). j. That the costs of the application be provided for. 2. The application was premised on grounds that the applicant was a controlled tenant under a tenancy agreement with the respondent over 5 shops located in the respondents building along Kamiti Road Githurai where he ran a furniture business. That the respondent had caused the lockdown of the premises and hindered the applicant from conducting his business and hence been unable to pay rent which led to the respondent ling a reference in the Business Premises and Rent restriction Tribunal BPRT/E956/2025.He submitted that the tribunal ruled in the respondent’s favour and asked the applicant to settle the accrued arrears. 3. That he was unable to settle the same due to not operating the business as he had been denied access, and led an application dated 12th February 2026 seeking orders to rescind the orders issued earlier of him settling rent arrears pending the determination of the matter and the court in its ruling dated 29th March 2026 dismissed the application hence this appeal and application 4. The respondent in opposing the application swore a replying adavit sworn on the 15th June 2026.He deponed that the applicant had defaulted in paying of rents in the suit premises which caused him to le a reference in the tribunal. That the tribunal ordered the applicant to settle the arrears which arrears had not been settled despite the court giving a waiver on the rents for the upper shops due to the allegations that the applicant had been locked out and prevented from accessing the same 5. He deponed that since the orders were issued till now the rental arears have accumulated to a sum of Ksh 276,000/= with the applicant still enjoying being in possession of the lower ground shop and actively operating a protable business. That further the allegations of the upper shops being inaccessible are false as there are alternative ways for the applicant to access the same and has refused to do so claiming he cannot access the shops via the stairs 6. He further deponed that instead of complying the applicant led the application that led to the impugned ruling of 29th March 2026 seeking to be exempted from paying rent which was dismissed. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5949/eng@2026-07-16 2

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7. That the prayers in the application are untenable as the orders of 29th March 2029 are negative orders dismissing an application 8. As at the time of drafting this ruling only the respondent had led submissions dated 6th July 2026. Respondent’s submissions 9. Counsel for the respondent submitted as in his replying adavit reiterating that the court cannot issue stay of execution orders against a negative order as there was nothing that had been directed for the respondent to act upon. To buttress this point, Counsel relied in the case of Mbaka Vs Mbai (Civil Appeal E902 of 2025) [2026] KEHC 7216 (KLR) (Civ) (19 May 2026 10. The respondent also submitted on whether the applicant had met the conditions necessary for grant of stay of execution orders as in Order 42 Rule 6(2) of the Civil Procedure Rules. He submitted that the applicant was to demonstrate substantial loss to be occasioned to him if the stay orders were not issued. He submitted that as demonstrated he is the one likely to suer loss as the applicant was in arrears for a period exceeding 12 months which monies he needed to be able to aord his medical care. That the applicant was still operating his business on the suit premises having not complied with the orders of settling arrears or paying rent .He relied in the case of Silverstein N. Chesoni [2002] 1KLR 867,. He submitted that the application was an attempt to try stop the respondent from levying distress for rent which action would be well within his rights and which execution of it would not amount to substantial loss placing reliance on what was stated in James Wangalwa & Another Vs Agnes Naliaka Cheseto [2012] eKLR:- Analysis and determination 11. Having looked at the application, the replying adavit the submissions and cited authorities, the issue for determination will be whether the application for grant of stay of execution is merited 12. 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— 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. 13. 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.” 14. 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 https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5949/eng@2026-07-16 3

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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. 15. It is not disputed that the applicant is in arrears in regards to the suit property as he has admitted so himself in seeking to have orders to stay the payment of the said arrears The Tribunal heard the applicant on his application seeking to stay the orders and came to a conclusion that he had not demonstrated why the stay orders should issue .The applicant is now before this court and the issue of substantial loss arises as it is the backbone of a stay of execution application 16. The applicant has indicated that if execution occurs and the he is tasked to pay the rental arrears, and further the respondent levies for distress for rent, he will suer irreparable loss as his business will collapse . 17. I am in agreement with the respondent being that there is 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.” In this case there is no loss demonstrated on the applicant’s side and the respondent is entitled to enjoy the fruits of his judgement by following any execution proceedings to recover the rent arrears. 18. On delay, the ruling was delivered on 29th March 2026 and the application led on 22nd April 2026.In the court’s view, there is no delay in bringing this Application as it was brought within the required time. On the security to be given, the Applicant has not stated what security he will furnish. Order 42 rule 6 (2) (b) requires the applicant to provide such security as may ultimately be binding upon him. It is my nding that the Applicant has not satised all the requirements for the grant of an order of stay of execution Final disposition For the reasons as above, I make the following order; i. This Application is without merit and is hereby dismissed. ii. Costs be awarded to the Respondent. It is so ordered. DATED, SIGNED AND DELIVERED VIA E-MAIL AT NAIROBI ON THIS 16TH DAY OF JULY 2026. MOHAMMED N. KULLOW JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5949/eng@2026-07-16 4

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