Introduction
1. The Appellant, being dissatisfied with the whole of the Ruling and Orders of the Business Premises Rent Tribunal at Machakos (Hon. P. Kitur, Member) delivered on 5 th June 2026 in Machakos BPRT Case No. E004 of 2026, lodged a Memorandum of Appeal against the said Ruling and Orders. Contemporaneously with the filing of the Appeal, the Appellant filed the Notice of Motion dated 15 th June 2026 seeking, inter alia, the following orders:
a) Spent.
b) Spent.
c) That pending the hearing and determination of the Appeal herein, this Honourable Court be pleased to Stay the execution of, and to suspend the operation of, the Orders made in paragraphs 42(c), (d) and (e) of the said Ruling.
d) That, consequent upon prayers (b) and (c) above, it be ordered for the avoidance of doubt that pending the hearing and determination of the Appeal the Appellant/Applicant is at liberty to issue, serve and act upon a tenancy notice in the prescribed form under section 4(2) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301, subject to the Respondents' right to oppose any such notice and to refer the same to the Tribunal in accordance with section 6 of the said Act, and provided that the Appellant/Applicant shall not evict the Respondents from the suit premises otherwise than in accordance with due process of the law.
e) That pending the hearing and determination of the Appeal, and by way of preservation of the substratum of the Appeal, the Respondents do pay the Appellant/Applicant all rent and/or mesne profits accruing in respect of the premises known as Plot NO. 400 Katelembo Athiani Co-operative Society, Machakos County from 1 st January 2026 to date at the monthly rate of Kshs. 20,000/- reserved under the expired lease.
f) That in default of compliance with prayer (e), the parties be at liberty to apply for appropriate orders, including the distress for rent and or the discharge or variation of any subsisting orders.
g) That the costs of this Application do abide the outcome of the Appeal.
2. The Application is supported by the Supporting Affidavit of the Appellant sworn on 15 th June 2026 and a Supplementary Affidavit sworn on 10 th July 2026. The Respondents oppose the Application through a Replying Affidavit sworn on 7 th July 2026 by Sarah Linda Adhiambo, the 3 rd Respondent.
The Appellant’s case
3. The Appellant’s case is that she is the registered proprietor of the suit premises, being Plot No. 400 Katelembo Athiani Co-operative Society, Machakos County, and was the landlord in Machakos BPRT Case No. E004 of 2026.
4. She states that the Respondents occupied the suit premises under successive written leases, the last of which was an Addendum dated 28 th August 2025 extending the tenancy for a further and final term of six months ending on 31 st December 2025. Her case is that clause 9(ii) of the August 2024 lease, which was incorporated into the Addendum, required three months’ written notice of an intention to renew the tenancy. No such notice was given. She therefore contends that the tenancy expired by effluxion of time on 31 st December 2025 and that the Respondents have since remained in occupation without payment of rent.
5. The Appellant states that, upon the Respondents asserting that they were controlled tenants, she issued a Landlord’s Notice to Terminate Tenancy dated 13th March 2026 pursuant to section 4(2) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301, terminating the tenancy with effect from 1st June 2026. She contends that the Respondents did not refer the notice to the Tribunal for determination under section 6(1) of the Act. She further contends that the Tribunal subsequently treated the notice as having been issued during the pendency of the proceedings and, on that basis, declared it ineffective.
6. The Appellant contends that, by its Ruling delivered on 5 th June 2026, the Tribunal allowed the Respondents’ Complaint and application and restrained her from evicting the Respondents or otherwise interfering with their possession and operation of the school on the suit premises. The Tribunal further directed that the Appellant could issue a tenancy notice only after six calendar months, declared ineffective any notice issued during the pendency of the proceedings, awarded the Respondents Kshs.20,000/= as costs deductible from the monthly rent, and marked the matter as closed.
7. The Appellant is dissatisfied with the whole of that Ruling. She has lodged an appeal. She contends that the Appeal raises arguable questions of law. She challenges, among other things, the Tribunal’s jurisdiction to finally determine a contested dispute and grant relief of a permanent nature at an interlocutory stage on affidavit evidence; its power to nullify the notice of 13 th March 2026 merely because it was issued during the pendency of the proceedings; and its jurisdiction to impose a six-month restraint on the issuance of tenancy notices and grant reliefs not sought by the parties. She also questions the legal basis for protecting the Respondents’ continued occupation in circumstances where the Tribunal found that payment of rent after expiry of the lease had not been established.
8. On substantial loss, the Appellant submits that the order permitting deduction of Kshs.20,000/= from monthly rent is self-executing, while the six-month restraint on the issuance of tenancy notices will lapse in or about December 2026. She contends that, unless the orders are stayed, that part of the Appeal may be rendered nugatory before it is heard. She further submits that the Respondents remain in occupation without payment of rent, resulting in continuing accrual of arrears and mesne profits without security for recovery.
9. The Appellant maintains that the application was brought promptly following delivery of the Tribunal’s Ruling. She is willing to abide by any conditions as the Court may impose, including an undertaking not to evict the Respondents except in accordance with due process. She contends that the Respondents will not suffer any prejudice because their occupation will remain undisturbed pending determination of the Appeal and their right to challenge any subsequent tenancy notice under section 6 of Cap. 301 will remain available.
10. In her Supplementary Affidavit sworn on 10 th July 2026, the Appellant acknowledged receipt of Kshs.30,000/= on or about 5 th February 2026 in respect of January 2026 rent, correcting her earlier assertion to the contrary. She maintains, however, that no rent was paid for the period February to June 2026. She also disputes the Respondents’ contention that the contractual requirement for notice of renewal was waived and that she consented to the substantive dispute being determined without a hearing.
The Respondents’ Case
11. The Application is opposed through the Replying Affidavit sworn on 7 th July 2026 by the 3 rd Respondent on behalf of all the Respondents. They contend that the suit premises house an operational school attended by learners and supported by teaching and non-teaching staff. They contend that any interruption of their occupation would disrupt learning and occasion substantial financial and other prejudice to the school, its staff and learners. They further submit that the Applicant, as the registered proprietor, will suffer no comparable prejudice because her proprietary interest remains protected pending the determination of the Appeal.
12. On the merits of the intended Appeal, the Respondents dispute the Applicant’s contention that the lease expired without renewal. They state that, after the contractual term expired, the parties negotiated renewal and that the Applicant continued to accept rent. They rely on the rent receipts annexed to their affidavit as evidence of the continued tenancy. They also dispute the allegation that no rent was paid after 31 st December 2025.
13. The Respondents further contend that the Tribunal did not determine the matter without hearing the parties. They contend that the parties agreed that the Complaint and application be disposed of by written submissions, after which each party was afforded an opportunity to present its case. They therefore dispute the Applicant’s characterization of the Tribunal’s decision as the grant of final relief at an interlocutory stage.
14. The Respondents also defend the Tribunal’s treatment of the Landlord’s Notice dated 13 th March 2026. They contend that the notice was issued while orders restraining interference with their occupation were in force and was therefore issued in breach of those orders. They maintain that the Tribunal was entitled to restrain further disruption of their occupation and to direct that any subsequent tenancy notice be issued after six months.
15. On the requirements for stay, the Respondents submit that the Applicant has not demonstrated substantial loss within the meaning of Order 42 rule 6(2) of the Civil Procedure Rules. They contend that the alleged rent arrears constitute a monetary claim recoverable through the ordinary legal process and that the financial consequences relied upon by the Applicant can be compensated. They further submit that the Applicant has not offered security for the due performance of any decree or order that may ultimately bind her, and that her general willingness to abide by conditions imposed by the Court is insufficient for that purpose.
16. Finally, the Respondents submit that the balance of prejudice favours preservation of their occupation pending the Appeal. They contend that a stay would expose them to the risk of eviction and closure of the school, with consequential disruption to the learner’s education. They therefore urge the Court to dismiss the application.
17. The Court directed that the Application be canvassed by way of written submissions, and both parties complied. The Appellant, through the firm of M/s Nyiha, Mukoma & Company Advocates , filed written submissions dated 10 th July 2026, while the Respondents, through the firm of M/s Kyalo, Muia & Company Advocates, filed written submissions dated 20 th July 2026.
Parties’ Submissions
The Appellant's Submissions
18. The Appellant submits that the Application is deliberately narrow. She does not seek to disturb paragraph 42(b) of the Tribunal’s Ruling, which restrains her from evicting the Respondents or interfering with their possession of the suit premises. Her case is that the school operations will therefore remain undisturbed. She challenges the orders in paragraphs 42(c), (d) and (e), which she describes as self-executing.
19. On the Appeal, the Applicant submits that it raises pure questions of law and jurisdiction. She identifies, among others, the question whether the Tribunal had jurisdiction to determine a contested dispute and grant permanent injunctive relief on affidavit evidence at an interlocutory stage, whether the Tribunal had power to nullify a statutory notice merely because it was issued during the pendency of proceedings and whether it could grant reliefs which any party had not sought without affording her an opportunity to be heard on those reliefs. In support of the arguability of the Appeal, she relies on Mbuthia v Jimba Credit Finance Corporation & another [1988] KECA 116 (KLR), Munaver N. Alibhai t/a Diani Boutique v South Coast Fitness & Sports Centre Limited [1995] KECA 166 (KLR), Speaker of the National Assembly v James Njenga Karume [1992] KECA 42 (KLR), Independent Electoral and Boundaries Commission & another v Mule & 3 others [2014] KECA 890 (KLR) and Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR)
20. In respect of the requirements under Order 42 Rule 6(2) of the Civil Procedure Rules, the Applicant submits that substantial loss has been demonstrated. She points to the six-month embargo imposed by the Tribunal, which she submits will lapse by effluxion of time in December 2026, and to the order permitting the Respondents to deduct Kshs.20,000/= from the monthly rent. She submits that the Application was filed within ten days of the Tribunal’s Ruling and was therefore made without unreasonable delay. As regards security, she relies on her undertaking to abide by such conditions as the Court may impose. She submits that the Court has power to impose appropriate conditions pursuant to section 13(7) of the Environment and Land Court Act and section 63(e) of the Civil Procedure Act.
21. The Applicant further relies on Butt v Rent Restriction Tribunal and urges the Court to exercise its discretion in a manner that preserves the efficacy of the Appeal.
The Respondents’ Submissions
22. The Respondents submit that the Applicant has failed to satisfy the requirements for the grant of stay under Order 42 Rule 6(2) of the Civil Procedure Rules. They rely on Butt v Rent Restriction Tribunal.
23. On substantial loss, the Respondents submit that the Applicant’s own Supplementary Affidavit acknowledges receipt of Kshs.30,000/= in respect of rent for January 2026. They contend that this admission contradicts the Applicant’s assertion that rent ceased upon expiry of the tenancy on 31 st December 2025 and demonstrates that the tenancy continued thereafter. They further submit that the alleged arrears constitute a quantifiable monetary claim capable of recovery through the ordinary legal process and that the Applicant has not demonstrated that any such sums, if ultimately found due, would be irrecoverable. They rely on Lucy Nyamanu Kimani v Lawrence Mburu Muthiga [2006] KEHC 1781 (KLR).
24. On prejudice, the Respondents submit that the Appellant had previously issued a three-day notice to vacate and, notwithstanding the subsisting orders of the Tribunal, proceeded to issue eviction notices. They contend that there is therefore a real risk of unlawful eviction and closure of the school, with the attendant disruption of the students’ education, contrary to Article 43(1)(f) of the Constitution. They point out that the Applicant remains the registered proprietor of the suit premises and that her proprietary interest has not been affected by the Tribunal’s orders.
25. On the arguability of the Appeal, the Respondents submit that the Appellant is merely seeking to re-argue factual matters which were considered and determined by the Tribunal. They contend that this does not raise an arguable appeal and rely on National Industrial Credit Bank Ltd v Aquinas Francis Wasike & another [2006] eKLR.
26. On the question whether the Appeal would be rendered nugatory, the Respondents submit that the orders sought to be stayed are capable of being reversed or compensated by an award of damages. They rely on Kenya Industrial Estate Limited & another v Matilda Tenge Mwachia [2021] KECA 1012.
27. Finally, on security, the Respondents submit that the Applicant has not offered any security for the due performance of any decree or order that may ultimately bind her. They contend that her general willingness to abide by such conditions as the Court may impose does not amount to an offer of security sufficient to satisfy the requirement under Order 42 Rule 6(2).
Issue for Determination
28. Having considered the Application, the affidavits on record, the rival submissions and the authorities cited, the following issues arise for determination:
a) Whether the Appellant has satisfied the requirements for the grant of stay of execution pending appeal under Order 42 Rule 6(2) of the Civil Procedure Rules; and
b) Whether the Appellant is entitled to the reliefs sought.
Analysis and Determination
Whether the Appellant has satisfied the requirements for the grant of stay of execution pending appeal under Order 42 Rule 6(2) of the Civil Procedure Rules.
29. The question before the Court is whether the circumstances of this case warrant an order staying the operation of the impugned orders pending the hearing and determination of the Appeal. The Court has discretion to grant such an order, guided by the requirements set out in Order 42 Rule 6 of the Civil Procedure Rules.
30. Order 42 Rule 6 of the Civil Procedure Rules , which provides as follows:
“Stay in case of appeal [Order 42, rule 6]
(1) No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.
(2) No order for stay of execution shall be made under subrule (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.
(3) Notwithstanding anything contained in subrule (2), the court shall have power, without formal application made, to order upon such terms as it may deem fit a stay of execution pending the hearing of a formal application.
(4) For the purposes of this rule an appeal to the Court of Appeal shall be deemed to have been filed when under the Rules of that Court notice of appeal has been given.
(5) An application for stay of execution may be made informally immediately following the delivery of judgment or ruling.
(6) Notwithstanding anything contained in subrule (1) of this rule the High Court shall have power in the exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it thinks just provided the procedure for instituting an appeal from a subordinate court or tribunal has been complied with.”
31. The jurisdiction under the Rule is discretionary. In Mukuma v Abuoga [1988] KECA 107 (KLR), the Court of Appeal identified the matters which a court is required to consider in an application for stay and observed:
“Granting a stay in the High Court is governed by Order XLI rule 4(2), the questions to be decided being – (a) whether substantial loss may result unless the stay is granted and the application is made without delay; and (b) the applicant has given security. The discretion under rule 5(2)(b) is at large, but as was pointed out in the Kenya Shell case substantial loss is the cornerstone of both jurisdictions. That is what has to be prevented, because such loss would render the appeal nugatory. Therefore it is necessary to preserve the status quo.”
32. The Court of Appeal in Butt v Rent Restriction Tribunal [1979] KECA 22 (KLR) further explained the manner in which that discretion should be exercised in the following terms:
“The power of the court to grant or refuse an application for stay of execution is a discretionary power. The discretion should be exercised in such a way as not to prevent an appeal. The general principle in granting or refusing a stay is; if there is no overwhelming hindrance, stay must be granted so that an appeal may not be rendered nugatory should that appeal court reverse the judge’s decision. A judge should not refuse a stay if there are good grounds for granting it merely because, in his opinion, a better remedy may become available to the Applicants at the end of the proceedings. The court in exercise of its discretion whether to grant or refuse an application for stay will consider the special circumstances of the case and its unique requirements.”
33. The Court must therefore balance two competing considerations. On the one hand, a successful litigant is ordinarily entitled to enjoy the fruits of the decision in his or her favour. On the other, a party who has exercised the right of appeal should not be deprived of the benefit of that appeal if it ultimately succeeds. The Court’s task is to preserve the efficacy of the appellate process while ensuring that the order made does not occasion prejudice which cannot adequately be addressed in the appeal.
34. In RWW v EKW [2019] KEHC 6523 (KLR) , the Court of Appeal stated:
“The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the Appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. However, in doing so, the Court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The Court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs. Indeed, to grant or refuse an application for stay of execution pending appeal is discretionary. The Court, when granting the stay, however, must balance the interests of the Appellant with those of the Respondent.”
35. It follows from Order 42 Rule 6(2) of the Civil Procedure Rules that the Applicant must satisfy three requirements before an order of stay may issue. The Court must be satisfied that substantial loss may result unless the stay is granted, that the application has been made without unreasonable delay, and that such security as the Court orders for the due performance of the decree or order that may ultimately be binding upon the Applicant has been given. The three requirements are conjunctive and each must be satisfied.
36. I will therefore consider each of the three requirements in turn. In doing so, I bear in mind that they are to be considered within the purpose of the jurisdiction under Order 42 Rule 6, namely, to protect the efficacy of the appeal while respecting the Respondents’ entitlement to the benefit of the decision under challenge.
i. Substantial Loss
37. The first requirement under Order 42 Rule 6(2)(a) of the Civil Procedure Rules is that the Applicant demonstrates that she will suffer substantial loss unless the order of stay is made. The Court is therefore concerned with the nature of the loss that may result from the continued operation of the impugned orders and whether that loss is such that the eventual success of the Appeal would be deprived of practical effect.
38. Substantial loss is not the ordinary consequence of an unsuccessful judgment. In Century Oil Trading Company Ltd v Kenya Shell Ltd , cited with approval in Al Yusra Restaurant Limited v Kenya Conference of Catholic Bishops [2025] KEHC 7288 (KLR), Kimaru J observed that the word “substantial” must mean something in addition to and different from the ordinary loss of losing a case. The Appellant must place before the Court material showing that execution or continued operation of the impugned orders will create a state of affairs that would irreparably affect or negate the essential core of the Appeal.
39. An Applicant seeking a stay must place before the Court material from which the nature and extent of the alleged substantial loss can be ascertained. A mere assertion that substantial loss is likely to occur is insufficient. The evidence must enable the Court to identify the loss complained of and determine whether it is substantial within the meaning of Order 42 Rule 6(2)(a) of the Civil Procedure Rules.
40. The importance of placing such evidence before the Court was emphasized by Platt, Ag. JA in Kenya Shell Limited v Benjamin Karuga Kibiru & another [1986] KECA 94 (KLR) in the following terms:
“It is usually a good rule to see if Order XLI Rule 4 of the Civil Procedure Rules can be substantiated. 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 difficult to see why the respondents should be kept out of their money.”
41. The Appellant’s evidence on this issue is contained in the Supporting Affidavit sworn on 15 th June 2026 and the Supplementary Affidavit sworn on 10 th July 2026. I have considered that evidence together with the Respondents’ response. The principal loss relied upon by the Appellant concerns the six-month restraint imposed by the Tribunal in paragraph 42(d) of its Ruling.
42. The Appellant deposes at paragraph 13 of the Supporting Affidavit that the six-month restraint will lapse in or about December 2026. The Ruling was delivered on 5 th June 2026. On the face of the order, six calendar months would therefore expire on 5 th December 2026. The Appellant’s complaint is that unless the Appeal is heard before then, she will have been prevented from issuing a tenancy notice under section 4(2) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301, for the entire period covered by the restraint.
43. The right which the Appellant says she has been prevented from exercising is the statutory right to issue a notice under section 4(2) of Cap. 301 as the first step in the statutory process for terminating a controlled tenancy. Whether the Appellant was entitled to exercise that right in the circumstances of this case, and whether the Tribunal had jurisdiction to restrain its exercise for six months, are matters that fall for determination in the Appeal. At this stage, the Court is concerned only with the consequence of the restraint continuing until it expires.
44. If the six-month period expires before the Appeal is heard, the Appellant will have been prevented from exercising the right throughout the period for which the Tribunal's order operates. A subsequent determination that the restraint was unlawful would not restore that period to the Appellant. The Appeal would then be concerned with an order whose practical operation had already run its course. The loss identified by the Appellant is therefore the loss of an opportunity to exercise a statutory right during the period in which its exercise was prohibited. It is a consequence an award of damages cannot readily compensate.
45. I am satisfied that the Appellant has demonstrated substantial loss on this ground. The concern is not merely that the Tribunal has made an order against her. It is that the period for which the restraint operates is finite and may expire before the Appeal is heard, with the result that a successful Appeal may come after the practical effect of the restraint has ceased. The Appellant has therefore established the particular loss contemplated under Order 42 Rule 6(2)(a) of the Civil Procedure Rules.
46. The Appellant also relies on the order directing that the costs of Kshs. 20,000 be deducted from monthly rent and on the alleged non-payment of rent after 31 st December 2025. At paragraph 12 of the Supporting Affidavit, the Appellant states that the costs deduction order self-executing and immediately operative. At paragraph 14 of the Supporting Affidavit and paragraphs 6 and 10 of the Supplementary Affidavit, she states that the Respondents have remained in occupation without paying rent. In the Supplementary Affidavit, she maintains that no rent was paid for February to June 2026.
47. The Respondents dispute the allegation of non-payment. The Appellant’s Supplementary Affidavit acknowledges receipt of Kshs. 30,000 in respect of January 2026. The dispute as to whether any further sums became payable after 31 st December 2025, and the legal basis on which such sums may be recovered, arise from the parties' competing positions concerning the tenancy and are not matters for final determination on this application. I therefore place no final finding on the alleged arrears in determining the present limb.
48. Accordingly, I find that the Applicant has established substantial loss within the meaning of Order 42 Rule 6(2)(a) of the Civil Procedure Rules. The first requirement is therefore satisfied.
ii. Unreasonable Delay
49. The impugned Ruling was delivered on 5 th June 2026, while the present Application was filed on 15 th June 2026. The Application was therefore lodged ten days after the Ruling was delivered. I find that it was made without unreasonable delay.
50. The impugned Ruling was delivered on 5 th June 2026, while the present Application was filed on 15 th June 2026. The Application was therefore lodged ten days after delivery of the Ruling. I find that it was made without unreasonable delay.
iii. Security
51. The final requirement under Order 42 Rule 6(2) of the Civil Procedure Rules is that the Applicant furnish such security as the Court may order for the due performance of such decree or order as may ultimately be binding upon her.
52. In Arun C. Sharma v Ashana Raikundalia t/a Raikundalia & Co Advocates & 2 others [2014] KEHC 2430 (KLR) , the Court explained the purpose of security under the Rule in the following terms:
“The purpose of the security under Order 42 is to guarantee due performance of such decree or order as may ultimately be binding on the Applicant… That is why any security given under Order 42 rule 6 of the Civil Procedure Rules acts as a security for the 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.”
53. The question whether security should be ordered, and the nature and quantum of such security, must be determined havin
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1. The Appellant, being dissatisfied with the whole of the Ruling and Orders of the Business Premises Rent Tribunal at Machakos (Hon. P. Kitur, Member) delivered on 5 th June 2026 in Machakos BPRT Case No. E004 of 2026, lodged a Memorandum of Appeal against the said Ruling and Orders. Contemporaneously with the filing of the Appeal, the Appellant filed the Notice of Motion dated 15 th June 2026 seeking, inter alia, the following orders:
a) Spent.
b) Spent.
c) That pending the hearing and determination of the Appeal herein, this Honourable Court be pleased to Stay the execution of, and to suspend the operation of, the Orders made in paragraphs 42(c), (d) and (e) of the said Ruling.
d) That, consequent upon prayers (b) and (c) above, it be ordered for the avoidance of doubt that pending the hearing and determination of the Appeal the Appellant/Applicant is at liberty to issue, serve and act upon a tenancy notice in the prescribed form under section 4(2) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301, subject to the Respondents' right to oppose any such notice and to refer the same to the Tribunal in accordance with section 6 of the said Act, and provided that the Appellant/Applicant shall not evict the Respondents from the suit premises otherwise than in accordance with due process of the law.
e) That pending the hearing and determination of the Appeal, and by way of preservation of the substratum of the Appeal, the Respondents do pay the Appellant/Applicant all rent and/or mesne profits accruing in respect of the premises known as Plot NO. 400 Katelembo Athiani Co-operative Society, Machakos County from 1 st January 2026 to date at the monthly rate of Kshs. 20,000/- reserved under the expired lease.
f) That in default of compliance with prayer (e), the parties be at liberty to apply for appropriate orders, including the distress for rent and or the discharge or variation of any subsisting orders.
g) That the costs of this Application do abide the outcome of the Appeal.
2. The Application is supported by the Supporting Affidavit of the Appellant sworn on 15 th June 2026 and a Supplementary Affidavit sworn on 10 th July 2026. The Respondents oppose the Application through a Replying Affidavit sworn on 7 th July 2026 by Sarah Linda Adhiambo, the 3 rd Respondent.
The Appellant’s case
3. The Appellant’s case is that she is the registered proprietor of the suit premises, being Plot No. 400 Katelembo Athiani Co-operative Society, Machakos County, and was the landlord in Machakos BPRT Case No. E004 of 2026.
4. She states that the Respondents occupied the suit premises under successive written leases, the last of which was an Addendum dated 28 th August 2025 extending the tenancy for a further and final term of six months ending on 31 st December 2025. Her case is that clause 9(ii) of the August 2024 lease, which was incorporated into the Addendum, required three months’ written notice of an intention to renew the tenancy. No such notice was given. She therefore contends that the tenancy expired by effluxion of time on 31 st December 2025 and that the Respondents have since remained in occupation without payment of rent.
5. The Appellant states that, upon the Respondents asserting that they were controlled tenants, she issued a Landlord’s Notice to Terminate Tenancy dated 13th March 2026 pursuant to section 4(2) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301, terminating the tenancy with effect from 1st June 2026. She contends that the Respondents did not refer the notice to the Tribunal for determination under section 6(1) of the Act. She further contends that the Tribunal subsequently treated the notice as having been issued during the pendency of the proceedings and, on that basis, declared it ineffective.
6. The Appellant contends that, by its Ruling delivered on 5 th June 2026, the Tribunal allowed the Respondents’ Complaint and application and restrained her from evicting the Respondents or otherwise interfering with their possession and operation of the school on the suit premises. The Tribunal further directed that the Appellant could issue a tenancy notice only after six calendar months, declared ineffective any notice issued during the pendency of the proceedings, awarded the Respondents Kshs.20,000/= as costs deductible from the monthly rent, and marked the matter as closed.
7. The Appellant is dissatisfied with the whole of that Ruling. She has lodged an appeal. She contends that the Appeal raises arguable questions of law. She challenges, among other things, the Tribunal’s jurisdiction to finally determine a contested dispute and grant relief of a permanent nature at an interlocutory stage on affidavit evidence; its power to nullify the notice of 13 th March 2026 merely because it was issued during the pendency of the proceedings; and its jurisdiction to impose a six-month restraint on the issuance of tenancy notices and grant reliefs not sought by the parties. She also questions the legal basis for protecting the Respondents’ continued occupation in circumstances where the Tribunal found that payment of rent after expiry of the lease had not been established.
8. On substantial loss, the Appellant submits that the order permitting deduction of Kshs.20,000/= from monthly rent is self-executing, while the six-month restraint on the issuance of tenancy notices will lapse in or about December 2026. She contends that, unless the orders are stayed, that part of the Appeal may be rendered nugatory before it is heard. She further submits that the Respondents remain in occupation without payment of rent, resulting in continuing accrual of arrears and mesne profits without security for recovery.
9. The Appellant maintains that the application was brought promptly following delivery of the Tribunal’s Ruling. She is willing to abide by any conditions as the Court may impose, including an undertaking not to evict the Respondents except in accordance with due process. She contends that the Respondents will not suffer any prejudice because their occupation will remain undisturbed pending determination of the Appeal and their right to challenge any subsequent tenancy notice under section 6 of Cap. 301 will remain available.
10. In her Supplementary Affidavit sworn on 10 th July 2026, the Appellant acknowledged receipt of Kshs.30,000/= on or about 5 th February 2026 in respect of January 2026 rent, correcting her earlier assertion to the contrary. She maintains, however, that no rent was paid for the period February to June 2026. She also disputes the Respondents’ contention that the contractual requirement for notice of renewal was waived and that she consented to the substantive dispute being determined without a hearing.
The Respondents’ Case
11. The Application is opposed through the Replying Affidavit sworn on 7 th July 2026 by the 3 rd Respondent on behalf of all the Respondents. They contend that the suit premises house an operational school attended by learners and supported by teaching and non-teaching staff. They contend that any interruption of their occupation would disrupt learning and occasion substantial financial and other prejudice to the school, its staff and learners. They further submit that the Applicant, as the registered proprietor, will suffer no comparable prejudice because her proprietary interest remains protected pending the determination of the Appeal.
12. On the merits of the intended Appeal, the Respondents dispute the Applicant’s contention that the lease expired without renewal. They state that, after the contractual term expired, the parties negotiated renewal and that the Applicant continued to accept rent. They rely on the rent receipts annexed to their affidavit as evidence of the continued tenancy. They also dispute the allegation that no rent was paid after 31 st December 2025.
13. The Respondents further contend that the Tribunal did not determine the matter without hearing the parties. They contend that the parties agreed that the Complaint and application be disposed of by written submissions, after which each party was afforded an opportunity to present its case. They therefore dispute the Applicant’s characterization of the Tribunal’s decision as the grant of final relief at an interlocutory stage.
14. The Respondents also defend the Tribunal’s treatment of the Landlord’s Notice dated 13 th March 2026. They contend that the notice was issued while orders restraining interference with their occupation were in force and was therefore issued in breach of those orders. They maintain that the Tribunal was entitled to restrain further disruption of their occupation and to direct that any subsequent tenancy notice be issued after six months.
15. On the requirements for stay, the Respondents submit that the Applicant has not demonstrated substantial loss within the meaning of Order 42 rule 6(2) of the Civil Procedure Rules. They contend that the alleged rent arrears constitute a monetary claim recoverable through the ordinary legal process and that the financial consequences relied upon by the Applicant can be compensated. They further submit that the Applicant has not offered security for the due performance of any decree or order that may ultimately bind her, and that her general willingness to abide by conditions imposed by the Court is insufficient for that purpose.
16. Finally, the Respondents submit that the balance of prejudice favours preservation of their occupation pending the Appeal. They contend that a stay would expose them to the risk of eviction and closure of the school, with consequential disruption to the learner’s education. They therefore urge the Court to dismiss the application.
17. The Court directed that the Application be canvassed by way of written submissions, and both parties complied. The Appellant, through the firm of M/s Nyiha, Mukoma & Company Advocates , filed written submissions dated 10 th July 2026, while the Respondents, through the firm of M/s Kyalo, Muia & Company Advocates, filed written submissions dated 20 th July 2026.
Parties’ Submissions
The Appellant's Submissions
18. The Appellant submits that the Application is deliberately narrow. She does not seek to disturb paragraph 42(b) of the Tribunal’s Ruling, which restrains her from evicting the Respondents or interfering with their possession of the suit premises. Her case is that the school operations will therefore remain undisturbed. She challenges the orders in paragraphs 42(c), (d) and (e), which she describes as self-executing.
19. On the Appeal, the Applicant submits that it raises pure questions of law and jurisdiction. She identifies, among others, the question whether the Tribunal had jurisdiction to determine a contested dispute and grant permanent injunctive relief on affidavit evidence at an interlocutory stage, whether the Tribunal had power to nullify a statutory notice merely because it was issued during the pendency of proceedings and whether it could grant reliefs which any party had not sought without affording her an opportunity to be heard on those reliefs. In support of the arguability of the Appeal, she relies on Mbuthia v Jimba Credit Finance Corporation & another [1988] KECA 116 (KLR), Munaver N. Alibhai t/a Diani Boutique v South Coast Fitness & Sports Centre Limited [1995] KECA 166 (KLR), Speaker of the National Assembly v James Njenga Karume [1992] KECA 42 (KLR), Independent Electoral and Boundaries Commission & another v Mule & 3 others [2014] KECA 890 (KLR) and Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR)
20. In respect of the requirements under Order 42 Rule 6(2) of the Civil Procedure Rules, the Applicant submits that substantial loss has been demonstrated. She points to the six-month embargo imposed by the Tribunal, which she submits will lapse by effluxion of time in December 2026, and to the order permitting the Respondents to deduct Kshs.20,000/= from the monthly rent. She submits that the Application was filed within ten days of the Tribunal’s Ruling and was therefore made without unreasonable delay. As regards security, she relies on her undertaking to abide by such conditions as the Court may impose. She submits that the Court has power to impose appropriate conditions pursuant to section 13(7) of the Environment and Land Court Act and section 63(e) of the Civil Procedure Act.
21. The Applicant further relies on Butt v Rent Restriction Tribunal and urges the Court to exercise its discretion in a manner that preserves the efficacy of the Appeal.
The Respondents’ Submissions
22. The Respondents submit that the Applicant has failed to satisfy the requirements for the grant of stay under Order 42 Rule 6(2) of the Civil Procedure Rules. They rely on Butt v Rent Restriction Tribunal.
23. On substantial loss, the Respondents submit that the Applicant’s own Supplementary Affidavit acknowledges receipt of Kshs.30,000/= in respect of rent for January 2026. They contend that this admission contradicts the Applicant’s assertion that rent ceased upon expiry of the tenancy on 31 st December 2025 and demonstrates that the tenancy continued thereafter. They further submit that the alleged arrears constitute a quantifiable monetary claim capable of recovery through the ordinary legal process and that the Applicant has not demonstrated that any such sums, if ultimately found due, would be irrecoverable. They rely on Lucy Nyamanu Kimani v Lawrence Mburu Muthiga [2006] KEHC 1781 (KLR).
24. On prejudice, the Respondents submit that the Appellant had previously issued a three-day notice to vacate and, notwithstanding the subsisting orders of the Tribunal, proceeded to issue eviction notices. They contend that there is therefore a real risk of unlawful eviction and closure of the school, with the attendant disruption of the students’ education, contrary to Article 43(1)(f) of the Constitution. They point out that the Applicant remains the registered proprietor of the suit premises and that her proprietary interest has not been affected by the Tribunal’s orders.
25. On the arguability of the Appeal, the Respondents submit that the Appellant is merely seeking to re-argue factual matters which were considered and determined by the Tribunal. They contend that this does not raise an arguable appeal and rely on National Industrial Credit Bank Ltd v Aquinas Francis Wasike & another [2006] eKLR.
26. On the question whether the Appeal would be rendered nugatory, the Respondents submit that the orders sought to be stayed are capable of being reversed or compensated by an award of damages. They rely on Kenya Industrial Estate Limited & another v Matilda Tenge Mwachia [2021] KECA 1012.
27. Finally, on security, the Respondents submit that the Applicant has not offered any security for the due performance of any decree or order that may ultimately bind her. They contend that her general willingness to abide by such conditions as the Court may impose does not amount to an offer of security sufficient to satisfy the requirement under Order 42 Rule 6(2).
Issue for Determination
28. Having considered the Application, the affidavits on record, the rival submissions and the authorities cited, the following issues arise for determination:
a) Whether the Appellant has satisfied the requirements for the grant of stay of execution pending appeal under Order 42 Rule 6(2) of the Civil Procedure Rules; and
b) Whether the Appellant is entitled to the reliefs sought.
Analysis and Determination
Whether the Appellant has satisfied the requirements for the grant of stay of execution pending appeal under Order 42 Rule 6(2) of the Civil Procedure Rules.
29. The question before the Court is whether the circumstances of this case warrant an order staying the operation of the impugned orders pending the hearing and determination of the Appeal. The Court has discretion to grant such an order, guided by the requirements set out in Order 42 Rule 6 of the Civil Procedure Rules.
30. Order 42 Rule 6 of the Civil Procedure Rules , which provides as follows:
“Stay in case of appeal [Order 42, rule 6]
(1) No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.
(2) No order for stay of execution shall be made under subrule (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.
(3) Notwithstanding anything contained in subrule (2), the court shall have power, without formal application made, to order upon such terms as it may deem fit a stay of execution pending the hearing of a formal application.
(4) For the purposes of this rule an appeal to the Court of Appeal shall be deemed to have been filed when under the Rules of that Court notice of appeal has been given.
(5) An application for stay of execution may be made informally immediately following the delivery of judgment or ruling.
(6) Notwithstanding anything contained in subrule (1) of this rule the High Court shall have power in the exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it thinks just provided the procedure for instituting an appeal from a subordinate court or tribunal has been complied with.”
31. The jurisdiction under the Rule is discretionary. In Mukuma v Abuoga [1988] KECA 107 (KLR), the Court of Appeal identified the matters which a court is required to consider in an application for stay and observed:
“Granting a stay in the High Court is governed by Order XLI rule 4(2), the questions to be decided being – (a) whether substantial loss may result unless the stay is granted and the application is made without delay; and (b) the applicant has given security. The discretion under rule 5(2)(b) is at large, but as was pointed out in the Kenya Shell case substantial loss is the cornerstone of both jurisdictions. That is what has to be prevented, because such loss would render the appeal nugatory. Therefore it is necessary to preserve the status quo.”
32. The Court of Appeal in Butt v Rent Restriction Tribunal [1979] KECA 22 (KLR) further explained the manner in which that discretion should be exercised in the following terms:
“The power of the court to grant or refuse an application for stay of execution is a discretionary power. The discretion should be exercised in such a way as not to prevent an appeal. The general principle in granting or refusing a stay is; if there is no overwhelming hindrance, stay must be granted so that an appeal may not be rendered nugatory should that appeal court reverse the judge’s decision. A judge should not refuse a stay if there are good grounds for granting it merely because, in his opinion, a better remedy may become available to the Applicants at the end of the proceedings. The court in exercise of its discretion whether to grant or refuse an application for stay will consider the special circumstances of the case and its unique requirements.”
33. The Court must therefore balance two competing considerations. On the one hand, a successful litigant is ordinarily entitled to enjoy the fruits of the decision in his or her favour. On the other, a party who has exercised the right of appeal should not be deprived of the benefit of that appeal if it ultimately succeeds. The Court’s task is to preserve the efficacy of the appellate process while ensuring that the order made does not occasion prejudice which cannot adequately be addressed in the appeal.
34. In RWW v EKW [2019] KEHC 6523 (KLR) , the Court of Appeal stated:
“The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the Appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. However, in doing so, the Court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The Court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs. Indeed, to grant or refuse an application for stay of execution pending appeal is discretionary. The Court, when granting the stay, however, must balance the interests of the Appellant with those of the Respondent.”
35. It follows from Order 42 Rule 6(2) of the Civil Procedure Rules that the Applicant must satisfy three requirements before an order of stay may issue. The Court must be satisfied that substantial loss may result unless the stay is granted, that the application has been made without unreasonable delay, and that such security as the Court orders for the due performance of the decree or order that may ultimately be binding upon the Applicant has been given. The three requirements are conjunctive and each must be satisfied.
36. I will therefore consider each of the three requirements in turn. In doing so, I bear in mind that they are to be considered within the purpose of the jurisdiction under Order 42 Rule 6, namely, to protect the efficacy of the appeal while respecting the Respondents’ entitlement to the benefit of the decision under challenge.
i. Substantial Loss
37. The first requirement under Order 42 Rule 6(2)(a) of the Civil Procedure Rules is that the Applicant demonstrates that she will suffer substantial loss unless the order of stay is made. The Court is therefore concerned with the nature of the loss that may result from the continued operation of the impugned orders and whether that loss is such that the eventual success of the Appeal would be deprived of practical effect.
38. Substantial loss is not the ordinary consequence of an unsuccessful judgment. In Century Oil Trading Company Ltd v Kenya Shell Ltd , cited with approval in Al Yusra Restaurant Limited v Kenya Conference of Catholic Bishops [2025] KEHC 7288 (KLR), Kimaru J observed that the word “substantial” must mean something in addition to and different from the ordinary loss of losing a case. The Appellant must place before the Court material showing that execution or continued operation of the impugned orders will create a state of affairs that would irreparably affect or negate the essential core of the Appeal.
39. An Applicant seeking a stay must place before the Court material from which the nature and extent of the alleged substantial loss can be ascertained. A mere assertion that substantial loss is likely to occur is insufficient. The evidence must enable the Court to identify the loss complained of and determine whether it is substantial within the meaning of Order 42 Rule 6(2)(a) of the Civil Procedure Rules.
40. The importance of placing such evidence before the Court was emphasized by Platt, Ag. JA in Kenya Shell Limited v Benjamin Karuga Kibiru & another [1986] KECA 94 (KLR) in the following terms:
“It is usually a good rule to see if Order XLI Rule 4 of the Civil Procedure Rules can be substantiated. 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 difficult to see why the respondents should be kept out of their money.”
41. The Appellant’s evidence on this issue is contained in the Supporting Affidavit sworn on 15 th June 2026 and the Supplementary Affidavit sworn on 10 th July 2026. I have considered that evidence together with the Respondents’ response. The principal loss relied upon by the Appellant concerns the six-month restraint imposed by the Tribunal in paragraph 42(d) of its Ruling.
42. The Appellant deposes at paragraph 13 of the Supporting Affidavit that the six-month restraint will lapse in or about December 2026. The Ruling was delivered on 5 th June 2026. On the face of the order, six calendar months would therefore expire on 5 th December 2026. The Appellant’s complaint is that unless the Appeal is heard before then, she will have been prevented from issuing a tenancy notice under section 4(2) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301, for the entire period covered by the restraint.
43. The right which the Appellant says she has been prevented from exercising is the statutory right to issue a notice under section 4(2) of Cap. 301 as the first step in the statutory process for terminating a controlled tenancy. Whether the Appellant was entitled to exercise that right in the circumstances of this case, and whether the Tribunal had jurisdiction to restrain its exercise for six months, are matters that fall for determination in the Appeal. At this stage, the Court is concerned only with the consequence of the restraint continuing until it expires.
44. If the six-month period expires before the Appeal is heard, the Appellant will have been prevented from exercising the right throughout the period for which the Tribunal's order operates. A subsequent determination that the restraint was unlawful would not restore that period to the Appellant. The Appeal would then be concerned with an order whose practical operation had already run its course. The loss identified by the Appellant is therefore the loss of an opportunity to exercise a statutory right during the period in which its exercise was prohibited. It is a consequence an award of damages cannot readily compensate.
45. I am satisfied that the Appellant has demonstrated substantial loss on this ground. The concern is not merely that the Tribunal has made an order against her. It is that the period for which the restraint operates is finite and may expire before the Appeal is heard, with the result that a successful Appeal may come after the practical effect of the restraint has ceased. The Appellant has therefore established the particular loss contemplated under Order 42 Rule 6(2)(a) of the Civil Procedure Rules.
46. The Appellant also relies on the order directing that the costs of Kshs. 20,000 be deducted from monthly rent and on the alleged non-payment of rent after 31 st December 2025. At paragraph 12 of the Supporting Affidavit, the Appellant states that the costs deduction order self-executing and immediately operative. At paragraph 14 of the Supporting Affidavit and paragraphs 6 and 10 of the Supplementary Affidavit, she states that the Respondents have remained in occupation without paying rent. In the Supplementary Affidavit, she maintains that no rent was paid for February to June 2026.
47. The Respondents dispute the allegation of non-payment. The Appellant’s Supplementary Affidavit acknowledges receipt of Kshs. 30,000 in respect of January 2026. The dispute as to whether any further sums became payable after 31 st December 2025, and the legal basis on which such sums may be recovered, arise from the parties' competing positions concerning the tenancy and are not matters for final determination on this application. I therefore place no final finding on the alleged arrears in determining the present limb.
48. Accordingly, I find that the Applicant has established substantial loss within the meaning of Order 42 Rule 6(2)(a) of the Civil Procedure Rules. The first requirement is therefore satisfied.
ii. Unreasonable Delay
49. The impugned Ruling was delivered on 5 th June 2026, while the present Application was filed on 15 th June 2026. The Application was therefore lodged ten days after the Ruling was delivered. I find that it was made without unreasonable delay.
50. The impugned Ruling was delivered on 5 th June 2026, while the present Application was filed on 15 th June 2026. The Application was therefore lodged ten days after delivery of the Ruling. I find that it was made without unreasonable delay.
iii. Security
51. The final requirement under Order 42 Rule 6(2) of the Civil Procedure Rules is that the Applicant furnish such security as the Court may order for the due performance of such decree or order as may ultimately be binding upon her.
52. In Arun C. Sharma v Ashana Raikundalia t/a Raikundalia & Co Advocates & 2 others [2014] KEHC 2430 (KLR) , the Court explained the purpose of security under the Rule in the following terms:
“The purpose of the security under Order 42 is to guarantee due performance of such decree or order as may ultimately be binding on the Applicant… That is why any security given under Order 42 rule 6 of the Civil Procedure Rules acts as a security for the 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.”
53. The question whether security should be ordered, and the nature and quantum of such security, must be determined havin
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