REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
ELCA NO. E009 OF 2026
EUNICE MUENIWAWERU..........................................................APPELLANT
VERSUS
GEORGE MWANGI GITHU...................................................RESPONDENT
RULING
1. The Appellant herein filed an application under Notice of Motion dated 24th February 2026, seeking the following orders:
a) Spent.
b) That the Honourable Court be pleased to stay the execution of the Tribunal Judgment delivered on 12th February 2026, as well as any other consequential orders, pending the hearing and determination of the case.
c) Spent.
d) That pending the hearing and determination of the appeal filed herein, an order be issued restraining the Respondent and/or its Agent from in any manner whatsoever interfering with the Appellant's/Applicant's quiet use, enjoyment, and levying distress on the suit premises located at Nyeri, and from increasing the monthly rent, pending the hearing and determination of this appeal.
e) That the Nyeri County Commandant, and in particular the Police Officer in charge of Nyeri Police Station, do ensure that the orders made herein are respected and/or adhered to.
f) That the costs of this application be provided for.
2. The application is supported by the affidavit of the Appellant/Applicant, who deposed that she has been a tenant of a shop in Nyeri, paying monthly rent diligently. However, she acknowledged rent arrears, which she is ready to offset if given sufficient time.
3. She deposed that the said rent arrears accumulated due to a sick family member who later passed away, thereby causing the appellant to sink into debt.
4. It is the Appellant’s case that she has invested heavily by carrying out repairs and has installed electricity at the said business premises at Kshs.11,500/=.
5. She accused the Landlord of failing to undertake repairs to a leaking roof, resulting in damage to clothes and a motor, totalling Kshs.89,400/=, all to be compensated by the Landlord.
6. The Appellant filed a Reference to the Business Premises Rent Tribunal to oppose the legal termination notice and to seek appropriate restraining orders, and the Respondent duly filed his Responses. After the pleadings were filed as detailed above, the Tribunal directed that the matter be disposed of by way of written submissions, which were filed.
7. On 12th February 2026, judgment was delivered, and the Tribunal pronounced itself on the Reference and dismissed it with costs; hence this appeal and application for a stay under certificate of urgency.
8. The Appellant/Applicant argued that the Learned Vice-Chairperson failed to consider the illegal threats of eviction issued to the Appellant by the Respondent.
9. That the Appellant, having been a tenant for a long time, has established business goodwill and, if auctioned or evicted, will suffer irreparable loss and damage, as he has heavily invested in his business within the suit premises, and that he will suffer substantial loss if the orders sought are not allowed.
10. The Appellant/Applicant believes she has a high likelihood of success, and if the orders are not granted, the appeal shall be rendered nugatory.
The Respondent’s replying affidavit.
11. Ms Loise N. Miriti, learned Counsel for the Respondent, swore a replying affidavit in response to the instant application and deposed that the Appellant/Applicant is a tenant of the Respondent at Plot No. 561/38, Othaya Township, Nyeri County.
12. She deposed that the Respondent issued a notice to terminate the Applicant's tenancy on 6 May 2024. The Applicant opposed this by filing a reference with the Business Premises Rent Tribunal, vide Nyeri BPRT No. E077 of 2024 , and the Respondent also filed a Reference, vide Nyeri BPRT No. E085 of 2024 .
13. The matters were consolidated under Nyeri BPRT No. E077 of 2024 as the lead file. The matter was heard on 17 November 2025, and submissions were filed.
14. It is deposed that the Honourable Tribunal delivered its judgment and issued its orders on 12th February 2026.
15. The Respondent was served with the application and the Memorandum of Appeal dated 24 February 2026, which challenged the orders.
16. Counsel argued that the application herein is a non-starter, as the Applicant has not, in any event, attached a copy of the judgment for this Court’s consideration
17. She also argues that the Applicant has not shown that she would suffer substantial loss if the stay of execution is not granted, and that the memorandum of appeal raises no arguable grounds of appeal and is merely an academic exercise, unworthy of this Court’s discretion. Accordingly, Counsel for the Respondent prayed that this application be dismissed with costs.
18. Parties filed written submissions, which the Court has duly read and considered.
Analysis Determination
19. The issues I frame for the determination of this Court are whether the Court should issue an order staying execution of the Hon. Tribunal’s decision of 12th February 2026, and whether the Court should grant an order restraining the Respondent and/or its Agent from in any manner interfering with the Appellant's/Applicant's quiet use, levying distress, increasing the monthly rent, and enjoyment of the suit premises located at Nyeri, pending the hearing and determination of this appeal. Costs.
20. On the first issue, the instant application seeks, first, an order staying execution of the judgment of the Business Premises Rent Tribunal delivered on 12th February 2026, and any other consequential orders pending the hearing and determination of the case.
21. However, I note that the Appellant/Applicant has not attached a copy of the judgment she seeks to stay.
22. Fortunately for the Appellant, a copy of the decision dated 12th February 2026 is contained within her Record of Appeal, which she has submitted. This decision pertains to Nyeri BPRT Case No. E077 of 2024 (Lead File), as consolidated with Nyeri BPRT Case No. E085 of 2024 . The Hon. Tribunal issued the following orders:
a) The notice to terminate tenancy is hereby upheld, and the controlled tenancy between the parties is lawfully terminated on the ground of admitted late payment of rent.
b) The Tenant shall pay all outstanding rent arrears within thirty (30) days from the date hereof and, in default, the Landlord shall be entitled to use lawful means to recover the same.
c) The Tenant shall vacate and deliver vacant possession of the suit premises within the same period of thirty (30) days hereof.
d) In default of compliance, the Tenant shall be evicted by a licensed auctioneer, with security provided by the OCS, Othaya Police Station.
e) The Tenant shall bear the Landlord's costs of the consolidated references and any eviction,
23. The Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301, which establishes the Business Premises and Rent Tribunal, does not expressly provide for a stay of execution of its orders. However, Section 15(4) mandates that this Court apply the procedure for appeals in civil matters from subordinate courts to the Environment and Land Court to appeals under the said Act.
24. Thus, the rules of Civil Procedure apply herein. Under Order 42 Rule 6 of the Civil Procedure Rules, which provides as follows:
“No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except appeal case of 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 the application being made, to consider such application and to make such order thereon as may to it seems 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.”
25. The Court of Appeal in Butt v Rent Restriction Tribunal [1979] KECA 22 (KLR) emphasised the purpose of stay orders as follows:
“If there is no other overwhelming hindrance, a stay ought to be granted so that an appeal, if successful, may not be nugatory. A stay which would otherwise be granted ought not to be refused because the judge considers that another, which in his opinion will be a better remedy, will become available to the applicant at the conclusion of the proceedings.
It is in the discretion of the court to grant or refuse a stay but what has to be judged in every case is whether there are or not particular circumstances in the case to make an order staying execution. It has been said that the court as a general rule ought to exercise its best discretion in a way so as not to prevent the appeal, if successful from being nugatory, per Brett, LJ in Wilson v Church (No 2) 12 Ch D (1879) 454 at p 459. In the same case, Cotton LJ said at p 458:
“I will state my opinion that when a party is appealing, exercising his undoubted right of appeal, this court ought to see that the appeal, if successful, is not nugatory.”
26. Therefore, orders of stay are issued to prevent the appeal from being rendered nugatory. The conditions for the grant of a stay are set out in Order 42 rule 6(2) of the Civil Procedure Rules. In summary, the court must be satisfied that substantial loss may result to the applicant, that the application has been made without unreasonable delay, and that such security as the court orders for the due performance of any decree or order that may ultimately be binding on him has been given by the applicant.
27. As to what constitutes substantial loss, the Court of Appeal in the case of James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR observed that:
“The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the applicant as the successful party in the appeal ... the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”
28. I acknowledge that failure to grant the stay may render the appeal nugatory and cause substantial loss, as the parties had a tenancy relationship that was nullified by the Tribunal's orders. Given the outstanding rent arrears, the Respondent may proceed to levy distress for rent.
29. However, the Applicant, having acknowledged that she has outstanding rent arrears, has failed to offer security for costs in due performance of the decree. The purpose of security was clearly set out in Arun C. Sharma v Ashana Raikundalia t/a Rairundalia & Co. Advocates & 2 others [2014] eKLR , where the Court stated:
“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.”
30. The High Court (Nyakundi J.) in the case of Gianfranco Manenthi & another v Africa Merchant Assurance Company Ltd [2019] KEHC 7586 (KLR) observed that:
“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 to delay execution of decrees through filing vexatious and frivolous appeals. In any event, the issue of deposit of security for due performance of decree is not a matter of willingness by the applicant but for the court to determine.”
31. In my view, the Applicant should demonstrate goodwill by paying the outstanding rent arrears. The Landlord's Notice to Terminate or Alter Terms of Tenancy, dated 6th May 2024, indicated that the arrears stood at Kshs.12,000/=. However, the decision of the Hon. Tribunal did not specify the final amount. I am of the view that a conditional stay, on the condition that the Applicant pays the outstanding rent arrears, will be germane in the circumstances.
32. In the second issue, the Applicant seeks an order to restrain the Respondent and/or its Agent from interfering in any manner with the Appellant's/Applicant's quiet use, enjoyment, and levying of distress in respect of the suit premises located at Nyeri, pending the hearing and determination of this appeal.
33. This is essentially an order for an injunction and a stay of execution, combined. Having discussed the stay of execution above, I am of the view that the Respondent/Landlord has the right to levy distress for rent if the Applicant fails to settle the amount ordered. Section 3 of the Distress for Rent Act [2012] Cap 293 of the Laws of Kenya provides;
“Subject to the provisions of this Act and any other written law, any person having any rent or rent service in arrear and due upon a grant lease, demise or contract shall have the same remedy by distress for the recovery of that rent or rent service as is given by the common law of England in a similar case.”
34. In the case of Peter Nthenge v Daniel Itumo and Another, NBI HCCC No 1242 of 1974 , quoted in John Nthumbi Kamwithi v Asha Akumu Juma [2015] eKLR , the court held;
“ The right of a Landlord to distrain for arrears of rent arises at common law and needs not be expressly reserved. It enables the Landlord to secure the payment of rent by seizing goods and chattels found upon the premises in respect of which the rent or obligations are due. Formerly, the right to distress was a right of some importance to the Landlord and was often exercised but it has not largely fallen into disuse.”
35. As for interfering with the Appellant's/Applicant's quiet use and enjoyment of the suit premises and increasing the monthly rent, the Court is obliged to apply the principles governing the grant of an injunction, which conditions are now well settled in the case of Giella v Cassman Brown & Company Limited (1973) E. A 358 , where the Court expressed itself on the conditions that a party must satisfy for the Court to grant an interlocutory injunction:
“First, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the Court is in doubt, it will decide an application on the balance of convenience.”
36. The Court of Appeal in Mrao Ltd v First American Bank of Kenya Limited and 2 Others [2003] eKLR explained that a prima facie case is one described as follows in the case:
“A case in which on the material presented to the Court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party to call for an explanation or rebuttal from the latter.”
37. Similarly, in Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR , the Court of Appeal stated that:
“The party on whom the burden of proving a prima facie case lies must show a clear and unmistakable right to be protected which is directly threatened by an act sought to be restrained, the invasion of the right has to be material and substantive and there must be an urgent necessity to prevent the irreparable damage that may result from the invasion. We reiterate that in considering whether or not a prima facie case has been established, the court does not hold a mini trial and must not examine the merits of the case closely. All that the court is to see is that on the face of it the person applying for an injunction has a right which has been or is threatened with violation.”
38. My considered view is that the Appellant has yet to establish her prospects of success at this preliminary stage of the appeal, as the Tribunal found her guilty of rent arrears, which she admitted. However, the Court is not to go into the merits of the case when determining whether a prima facie case exists. She pleaded for an offset of personal contributions to repairs on the business premises, as well as loss, which are yet to be proved but, if true, would cause her harm.
39. Thus, the balance of convenience lies in maintaining the Appellant at the suit premises pending the appeal herein, on condition that she pays security for the due performance of the decree in the form of the outstanding arrears.
40. Consequently, the current application is allowed on condition that the Appellant pays the rent arrears within the next 30 days and that, within that period, the record of appeal be filed and served. Failure to do so will result in the appeal being struck out automatically.
41. Cost to abide by the outcome of the appeal.
Dated, signed, and delivered virtually at Nyeri on this 12th day of August 2026.
E. K. MAKORI
JUDGE
In the Presence of:
Mr Macharia for the Respondent
Denis - Court Assistant
In the Absence of:
The Applicant (in person)
ELCA NO. E009 OF 2026 Page 2 of 2
IN THE HIGH COURT OF KENYA AT NYERI
ELCA NO. E009 OF 2026
EUNICE MUENIWAWERU..........................................................APPELLANT
VERSUS
GEORGE MWANGI GITHU...................................................RESPONDENT
RULING
1. The Appellant herein filed an application under Notice of Motion dated 24th February 2026, seeking the following orders:
a) Spent.
b) That the Honourable Court be pleased to stay the execution of the Tribunal Judgment delivered on 12th February 2026, as well as any other consequential orders, pending the hearing and determination of the case.
c) Spent.
d) That pending the hearing and determination of the appeal filed herein, an order be issued restraining the Respondent and/or its Agent from in any manner whatsoever interfering with the Appellant's/Applicant's quiet use, enjoyment, and levying distress on the suit premises located at Nyeri, and from increasing the monthly rent, pending the hearing and determination of this appeal.
e) That the Nyeri County Commandant, and in particular the Police Officer in charge of Nyeri Police Station, do ensure that the orders made herein are respected and/or adhered to.
f) That the costs of this application be provided for.
2. The application is supported by the affidavit of the Appellant/Applicant, who deposed that she has been a tenant of a shop in Nyeri, paying monthly rent diligently. However, she acknowledged rent arrears, which she is ready to offset if given sufficient time.
3. She deposed that the said rent arrears accumulated due to a sick family member who later passed away, thereby causing the appellant to sink into debt.
4. It is the Appellant’s case that she has invested heavily by carrying out repairs and has installed electricity at the said business premises at Kshs.11,500/=.
5. She accused the Landlord of failing to undertake repairs to a leaking roof, resulting in damage to clothes and a motor, totalling Kshs.89,400/=, all to be compensated by the Landlord.
6. The Appellant filed a Reference to the Business Premises Rent Tribunal to oppose the legal termination notice and to seek appropriate restraining orders, and the Respondent duly filed his Responses. After the pleadings were filed as detailed above, the Tribunal directed that the matter be disposed of by way of written submissions, which were filed.
7. On 12th February 2026, judgment was delivered, and the Tribunal pronounced itself on the Reference and dismissed it with costs; hence this appeal and application for a stay under certificate of urgency.
8. The Appellant/Applicant argued that the Learned Vice-Chairperson failed to consider the illegal threats of eviction issued to the Appellant by the Respondent.
9. That the Appellant, having been a tenant for a long time, has established business goodwill and, if auctioned or evicted, will suffer irreparable loss and damage, as he has heavily invested in his business within the suit premises, and that he will suffer substantial loss if the orders sought are not allowed.
10. The Appellant/Applicant believes she has a high likelihood of success, and if the orders are not granted, the appeal shall be rendered nugatory.
The Respondent’s replying affidavit.
11. Ms Loise N. Miriti, learned Counsel for the Respondent, swore a replying affidavit in response to the instant application and deposed that the Appellant/Applicant is a tenant of the Respondent at Plot No. 561/38, Othaya Township, Nyeri County.
12. She deposed that the Respondent issued a notice to terminate the Applicant's tenancy on 6 May 2024. The Applicant opposed this by filing a reference with the Business Premises Rent Tribunal, vide Nyeri BPRT No. E077 of 2024 , and the Respondent also filed a Reference, vide Nyeri BPRT No. E085 of 2024 .
13. The matters were consolidated under Nyeri BPRT No. E077 of 2024 as the lead file. The matter was heard on 17 November 2025, and submissions were filed.
14. It is deposed that the Honourable Tribunal delivered its judgment and issued its orders on 12th February 2026.
15. The Respondent was served with the application and the Memorandum of Appeal dated 24 February 2026, which challenged the orders.
16. Counsel argued that the application herein is a non-starter, as the Applicant has not, in any event, attached a copy of the judgment for this Court’s consideration
17. She also argues that the Applicant has not shown that she would suffer substantial loss if the stay of execution is not granted, and that the memorandum of appeal raises no arguable grounds of appeal and is merely an academic exercise, unworthy of this Court’s discretion. Accordingly, Counsel for the Respondent prayed that this application be dismissed with costs.
18. Parties filed written submissions, which the Court has duly read and considered.
Analysis Determination
19. The issues I frame for the determination of this Court are whether the Court should issue an order staying execution of the Hon. Tribunal’s decision of 12th February 2026, and whether the Court should grant an order restraining the Respondent and/or its Agent from in any manner interfering with the Appellant's/Applicant's quiet use, levying distress, increasing the monthly rent, and enjoyment of the suit premises located at Nyeri, pending the hearing and determination of this appeal. Costs.
20. On the first issue, the instant application seeks, first, an order staying execution of the judgment of the Business Premises Rent Tribunal delivered on 12th February 2026, and any other consequential orders pending the hearing and determination of the case.
21. However, I note that the Appellant/Applicant has not attached a copy of the judgment she seeks to stay.
22. Fortunately for the Appellant, a copy of the decision dated 12th February 2026 is contained within her Record of Appeal, which she has submitted. This decision pertains to Nyeri BPRT Case No. E077 of 2024 (Lead File), as consolidated with Nyeri BPRT Case No. E085 of 2024 . The Hon. Tribunal issued the following orders:
a) The notice to terminate tenancy is hereby upheld, and the controlled tenancy between the parties is lawfully terminated on the ground of admitted late payment of rent.
b) The Tenant shall pay all outstanding rent arrears within thirty (30) days from the date hereof and, in default, the Landlord shall be entitled to use lawful means to recover the same.
c) The Tenant shall vacate and deliver vacant possession of the suit premises within the same period of thirty (30) days hereof.
d) In default of compliance, the Tenant shall be evicted by a licensed auctioneer, with security provided by the OCS, Othaya Police Station.
e) The Tenant shall bear the Landlord's costs of the consolidated references and any eviction,
23. The Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301, which establishes the Business Premises and Rent Tribunal, does not expressly provide for a stay of execution of its orders. However, Section 15(4) mandates that this Court apply the procedure for appeals in civil matters from subordinate courts to the Environment and Land Court to appeals under the said Act.
24. Thus, the rules of Civil Procedure apply herein. Under Order 42 Rule 6 of the Civil Procedure Rules, which provides as follows:
“No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except appeal case of 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 the application being made, to consider such application and to make such order thereon as may to it seems 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.”
25. The Court of Appeal in Butt v Rent Restriction Tribunal [1979] KECA 22 (KLR) emphasised the purpose of stay orders as follows:
“If there is no other overwhelming hindrance, a stay ought to be granted so that an appeal, if successful, may not be nugatory. A stay which would otherwise be granted ought not to be refused because the judge considers that another, which in his opinion will be a better remedy, will become available to the applicant at the conclusion of the proceedings.
It is in the discretion of the court to grant or refuse a stay but what has to be judged in every case is whether there are or not particular circumstances in the case to make an order staying execution. It has been said that the court as a general rule ought to exercise its best discretion in a way so as not to prevent the appeal, if successful from being nugatory, per Brett, LJ in Wilson v Church (No 2) 12 Ch D (1879) 454 at p 459. In the same case, Cotton LJ said at p 458:
“I will state my opinion that when a party is appealing, exercising his undoubted right of appeal, this court ought to see that the appeal, if successful, is not nugatory.”
26. Therefore, orders of stay are issued to prevent the appeal from being rendered nugatory. The conditions for the grant of a stay are set out in Order 42 rule 6(2) of the Civil Procedure Rules. In summary, the court must be satisfied that substantial loss may result to the applicant, that the application has been made without unreasonable delay, and that such security as the court orders for the due performance of any decree or order that may ultimately be binding on him has been given by the applicant.
27. As to what constitutes substantial loss, the Court of Appeal in the case of James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR observed that:
“The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the applicant as the successful party in the appeal ... the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”
28. I acknowledge that failure to grant the stay may render the appeal nugatory and cause substantial loss, as the parties had a tenancy relationship that was nullified by the Tribunal's orders. Given the outstanding rent arrears, the Respondent may proceed to levy distress for rent.
29. However, the Applicant, having acknowledged that she has outstanding rent arrears, has failed to offer security for costs in due performance of the decree. The purpose of security was clearly set out in Arun C. Sharma v Ashana Raikundalia t/a Rairundalia & Co. Advocates & 2 others [2014] eKLR , where the Court stated:
“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.”
30. The High Court (Nyakundi J.) in the case of Gianfranco Manenthi & another v Africa Merchant Assurance Company Ltd [2019] KEHC 7586 (KLR) observed that:
“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 to delay execution of decrees through filing vexatious and frivolous appeals. In any event, the issue of deposit of security for due performance of decree is not a matter of willingness by the applicant but for the court to determine.”
31. In my view, the Applicant should demonstrate goodwill by paying the outstanding rent arrears. The Landlord's Notice to Terminate or Alter Terms of Tenancy, dated 6th May 2024, indicated that the arrears stood at Kshs.12,000/=. However, the decision of the Hon. Tribunal did not specify the final amount. I am of the view that a conditional stay, on the condition that the Applicant pays the outstanding rent arrears, will be germane in the circumstances.
32. In the second issue, the Applicant seeks an order to restrain the Respondent and/or its Agent from interfering in any manner with the Appellant's/Applicant's quiet use, enjoyment, and levying of distress in respect of the suit premises located at Nyeri, pending the hearing and determination of this appeal.
33. This is essentially an order for an injunction and a stay of execution, combined. Having discussed the stay of execution above, I am of the view that the Respondent/Landlord has the right to levy distress for rent if the Applicant fails to settle the amount ordered. Section 3 of the Distress for Rent Act [2012] Cap 293 of the Laws of Kenya provides;
“Subject to the provisions of this Act and any other written law, any person having any rent or rent service in arrear and due upon a grant lease, demise or contract shall have the same remedy by distress for the recovery of that rent or rent service as is given by the common law of England in a similar case.”
34. In the case of Peter Nthenge v Daniel Itumo and Another, NBI HCCC No 1242 of 1974 , quoted in John Nthumbi Kamwithi v Asha Akumu Juma [2015] eKLR , the court held;
“ The right of a Landlord to distrain for arrears of rent arises at common law and needs not be expressly reserved. It enables the Landlord to secure the payment of rent by seizing goods and chattels found upon the premises in respect of which the rent or obligations are due. Formerly, the right to distress was a right of some importance to the Landlord and was often exercised but it has not largely fallen into disuse.”
35. As for interfering with the Appellant's/Applicant's quiet use and enjoyment of the suit premises and increasing the monthly rent, the Court is obliged to apply the principles governing the grant of an injunction, which conditions are now well settled in the case of Giella v Cassman Brown & Company Limited (1973) E. A 358 , where the Court expressed itself on the conditions that a party must satisfy for the Court to grant an interlocutory injunction:
“First, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the Court is in doubt, it will decide an application on the balance of convenience.”
36. The Court of Appeal in Mrao Ltd v First American Bank of Kenya Limited and 2 Others [2003] eKLR explained that a prima facie case is one described as follows in the case:
“A case in which on the material presented to the Court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party to call for an explanation or rebuttal from the latter.”
37. Similarly, in Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR , the Court of Appeal stated that:
“The party on whom the burden of proving a prima facie case lies must show a clear and unmistakable right to be protected which is directly threatened by an act sought to be restrained, the invasion of the right has to be material and substantive and there must be an urgent necessity to prevent the irreparable damage that may result from the invasion. We reiterate that in considering whether or not a prima facie case has been established, the court does not hold a mini trial and must not examine the merits of the case closely. All that the court is to see is that on the face of it the person applying for an injunction has a right which has been or is threatened with violation.”
38. My considered view is that the Appellant has yet to establish her prospects of success at this preliminary stage of the appeal, as the Tribunal found her guilty of rent arrears, which she admitted. However, the Court is not to go into the merits of the case when determining whether a prima facie case exists. She pleaded for an offset of personal contributions to repairs on the business premises, as well as loss, which are yet to be proved but, if true, would cause her harm.
39. Thus, the balance of convenience lies in maintaining the Appellant at the suit premises pending the appeal herein, on condition that she pays security for the due performance of the decree in the form of the outstanding arrears.
40. Consequently, the current application is allowed on condition that the Appellant pays the rent arrears within the next 30 days and that, within that period, the record of appeal be filed and served. Failure to do so will result in the appeal being struck out automatically.
41. Cost to abide by the outcome of the appeal.
Dated, signed, and delivered virtually at Nyeri on this 12th day of August 2026.
E. K. MAKORI
JUDGE
In the Presence of:
Mr Macharia for the Respondent
Denis - Court Assistant
In the Absence of:
The Applicant (in person)
ELCA NO. E009 OF 2026 Page 2 of 2