EDWARD NJOROGE MWANGI VS WILLIAM KIMUNYU NDEGWA

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1. The Respondent/Applicant filed the Notice of Motion dated 14th February 2025 seeking the following orders –
i) That this Honourable Court be pleased to order the release of the decretal sum Kshs 131,437= deposited in court to the Applicant.

ii) The costs of this application be in the cause.

2. The above prayers are supported by the grounds on the face of the application and the Applicant''s Supporting Affidavit. The Applicant claims that this Appeal was determined through the Judgment dated 7th February 2019.  The Appellant filed an application dated 12th April 2019 seeking the release of the portion of the decretal amount deposited in court to him, but the application was dismissed with costs vide a Ruling dated 9th December 2022. In the said ruling, the court stated that the application of the Landlord and Tenant shall only cease if and when the proper rent is assessed and paid. 
3. The Applicant deposes that the court further, in its Ruling dated 6th July 2023, held that the rent payable for the premises during the relevant period was Kshs.. 26,852= per month. The Respondent never appealed the said Rulings that gave directions to enforce the Judgment. He states that the present application is proper in law, and it is in the interest of justice that the decretal sum deposited in court be released to him.

Appellant/Respondent Replying Affidavit
4. The Respondent filed a Replying Affidavit dated 14th October 2025 in reply to the instant Notice of Motion, stating -
a) that there is a pending Appeal challenging the decision of the Lower Court in the Ruling dated 6th July 2023 with respect to the determination of the rent payable in the Business Premises once occupied. 

b) He claims that the present application is premature and misconceived, as it seeks to preempt the outcome of the Appeal on the issue of rent payable.

c) Further, allowing this application would render the pending appeal nugatory and thereby occasion great prejudice to him.

d) The Respondent stated that the application is an abuse of the court process, wholly misguided, and aimed at defeating the due process of the law and that, in the interest of justice, the funds deposited in court should remain therein pending the determination of the appeal. 

Analysis and Determination
5. The court has considered the application herein, the reply thereto, and the oral submissions made in court on 14th October 2025. The Applicant submitted that he was awarded the sum of Kshs. 262,874= by the Business Premises Tribunal.  The Appellant was ordered by this court to deposit in court half of the decretal sum, being Kshs. 131,437= as a condition to the grant of an order of stay of execution pending hearing and determination of the appeal. 
6. By the Judgment of this court dated 7th February 2019, the court set aside the Judgment of the BPRT.  The court went further and directed that, since the order of the court did not resolve the dispute that the parties had referred to the Tribunal, the parties were to file a joint Valuation Report in respect of the suit premises to enable this court decide on the issue of the rent payable.
7. By a Ruling of the Hon. Justice Olola dated 6th July 2023, it was determined that the rent payable for the suit premises during the relevant period was Kshs 26,852= per month.  This was the same amount as had been determined by the Tribunal.
8. The Court perused the court file and confirmed that the Appellant was ordered to deposit half of the decretal sum in court on 20th March 2017 as a condition for the grant of an order of stay of execution of the Tribunal''s decree.  The said order arose from the application dated 20th March 2017 in which the Appellant had confirmed that the amount due upon the Judgment of the Tribunal was Kshs 262,874=.
9. The Appellant/Respondent, on his part, stated that he filed a Notice of Appeal dated 10th July 2023, challenging the court''s ruling dated 6th July 2023 in respect of the determination of the rent payable in the business premises he once occupied.
10. He claimed that the present application is premature as it preempts the outcome of the Appeal on the issue of rent payable.  He stated that allowing the application would render the Appeal nugatory, occasioning great prejudice to him.
11. The court is guided by the provisions of Section 15 of the Landlord & Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301 Laws of Kenya, which provides that the decision of the Environment and Land Court on any Appeal under that Act is final and shall not be the subject of a further Appeal.  The section states that –
(1) Any party to a reference aggrieved by any determination or order of a Tribunal made therein may, within thirty days after the date of such determination or order, appeal to the Environment and Land Court: Provided that the Environment and Land Court may, where it is satisfied that there is sufficient reason for so doing, extend the said period of thirty days upon such conditions, if any, as it may think fit.
(2) In hearing appeals under subsection (1) of this section, the Court shall have all the powers conferred on a Tribunal by or under this Act, in addition to any other powers conferred on it by or under any written law.
(3) Deleted by Act No. 2 of 1970, s. 13.
(4) The procedure in and relating to appeals in civil matters from subordinate courts to the Environment and Land Court shall govern appeals under this Act:
Provided that the decision of the Environment and Land Court on any appeal under this Act shall be final and shall not be subject to further appeal.
12. The court has read the Judgment of Hon. L. Waithaka (J) dated 7th February 2019, wherein the parties were directed to file a joint Valuation Report in respect of the suit premises to enable the court to decide on the issue of the rent payable.  The court made a determination of the rent payable in respect of the suit premises through the ruling dated 6th July 2023.  The said determination in the court’s view forms part of the Judgment itself. In the court''s view, the said ruling, being part of the Judgment, is subject to the proviso to Section 15(4) of the Cap 301 set out above and is thus not appealable.
13. From the foregoing, the question of whether the Appeal would be rendered nugatory is not an issue in the present case. It is further noted that, even if the decision of this court was appealable, the Respondent did not apply for a stay of execution or proceedings pending Appeal.
14. The purpose of the provision of security when granting a stay of execution is to guarantee the judgment-debtor''s due performance of the decree if the stay is lifted or when the appeal is heard and determined, and the judgment-debtor is found to owe money, as happened in this case. The security protects the successful litigant by ensuring the judgment-debtor cannot dispose of or remove assets to evade the final judgment. It provides a financial safeguard for the party that won the original judgment, ensuring they can still be compensated or have the decree enforced if the stay is lifted and the appeal fails. Security also prevents evasion by the judgment debtor from removing, selling, or hiding their property to avoid fulfilling the court''s final order. Further, by requiring security, the court can ensure that the judgment-debtor is serious about their appeal and has the means to satisfy the judgment if it is upheld.
15. The court observed in the case of Gianfranco Manenthi & Another vs Africa Merchant Assurance Co. Ltd [2019] eKLR that:-
“The applicant must show and meet the condition of payment of security for due performance of the decree. Under this condition, a party that seeks the right of appeal from a money decree of the lower court for an order of stay must satisfy this condition on security. In this regard, the security for due performance of the decree under Order 42 Rule 6(1) of the Civil Procedure Rules, it is trite that the winner of litigation should not be denied the opportunity to execute the decree to enjoy the fruits of his judgment in case the appeal falls.’’
Further Order 42 should be seen from the point of view that a debt is already owed and due for payment to the successful litigant in a litigation before a court which has delivered the matter in his favour. This is therefore to provide a situation for the court that if the appellant fails to succeed on appeal, there could be no return to the status quo on the part of the plaintiff to initiate execution proceedings where the judgment involves a money decree. The court would order for the release of the deposited decretal amount to the respondent in the appeal….
Thus, the objective of the legal provisions on security was never intended to fetter the right of appeal. It was also put in place to ensure that courts do not assist litigants in delaying the execution of decrees through vexatious and frivolous appeals. In any event, the issue of deposit of security for due performance of the decree is not a matter of willingness by the applicant but for the court to determine. "
16. It is thus clear from the foregoing that the Applicant ought not to be made to re-start the process of execution of the decree that was stopped by the court since the sum claimed was already found due and owing to him by this court, considering that the money is available, having been deposited in court.
17. The upshot of the above is that the application dated 14th February 2025 has merit, and it is allowed as prayed.

Dated, Signed and Delivered at Nyeri, this 27th day of  November 2025

In the Presence of:-
C. Kendi: Court Assistant
Applicant present in person
Makura for the Appellant/Respondent

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