A: I ntroduction:
1.Before this court for ruling is the Applicants’ Application dated 15.7.2026 brought pursuant to Articles 159 (1) (d), 47(1), 50(1) of the Constitution of the Republic of Kenya, 2010, Sections 8(2) & 9(1)(b) of the Law Reform Act, Cap 26, & 11 of the Fair Administrative Act No. 4 of 2015, Order 42 Rule 6 of the Civil Procedure Rules, 2010 and all other enabling Laws of Kenya for orders that: -
a) THAT this application be certified urgent and heard ex-parte in the first instance.
b) THAT upon hearing this Application ex-parte, this Honorable Court be pleased to issue an interim Order of stay of execution of the Ruling delivered by the Business Premises Rent Tribunal in Tribunal Case No. BPRT/E031 of 2026 consolidated with Tribunal Case No. BPRT/E618 of 2026 delivered on the 9th of July 2026 together with all the resultant consequential orders flowing therefrom, pending determination of the same inter partes
c)THAT upon hearing this Application inter partes this Honorable Court be pleased to issue a permanent Order of stay of execution of the Ruling delivered by the Business Premises Rent Tribunal in Tribunal Case No. BPRT/E031 of 2026 consolidated with Tribunal Case No. BPRT/E618 of 2026 delivered on 9th July 2026 together with all the resultant consequential orders flowing therefrom, pending final determination of the main suit.
d)THAT the costs of this Application be provided for.
2. The Application is supported by the affidavits of Peter Otieno sworn on 15.07. 2026 and grounds on the face of it.
3.The Application was opposed by Respondents vide a Replying Affidavit sworn by Marjorie Marigu Nyagah (1st Respondent) on 24.07.2026.
4. The Applicants/Appellants contended that they have an arguable appeal that shall be rendered nugatory should order of stay of execution of the ruling of business premises rent tribunal dated 9.7.2026 be not granted thereby subjecting them to loss that cannot be compensated by costs. The Applicants averred that their appeal shall be rendered nugatory and are willing to provide security on terms set by the court.
5.The Respondents deny the Appellants’ allegations of invasion, theft and misconduct, maintaining that the Tribunal properly exercised its discretion. She contended further that the Applicants have persistently defaulted in payment of rent and failed to comply with the Tribunal’s orders and their undertaking to vacate and clear the outstanding arrears. She relies on rent statements, M-Pesa records and other documentary evidence in support of the alleged rent payment defaults.
6. The 1st Respondent averred that the allegations of invasion and theft are unsubstantiated and were investigated without any adverse findings against her. The 1 st respondent contended that the Applicants approached the court with unclean hands and abusing the Court process and their continued occupation of the premises without payment of rent amounts to unjust enrichment by the Applicants and prejudices her proprietary rights.
7. On Application for stay of execution of the decree pending hearing and determination of appeal the Respondents argued that the Appellants have demonstrated no substantial loss, offered no security for due performance of decree and not established an arguable appeal warranting interference with the Tribunal’s orders. The Respondents contended that the landlord-tenant relationship has irretrievably broken down and balance of convenience tilts in her favor.
B. Directions of the Court:
8. On 16.07.2026, the Court granted a conditional stay of execution of the Ruling dated 9.07.2026, for deposit of Kshs. 200,000.00 in court by the Applicants/appellants pending interpartes hearing of the application which the Applicants complied with.
9. On 30.07.2026 by consent of the parties, the Court directed that the Application be canvassed by way of written submissions which the parties complied with.
C. Submissions by Parties:
10. The Appellants/Applicants and Respondents complied by filing their written submissions dated 3 rd August 2026 and 10 th August 2026 respectively which I have considered so to the cited decided cases.
D. Issue for determination:
11. Whether the Appellants/Applicants have satisfied the legal threshold for grant a stay of execution of the Ruling 09.07.2026 pursuant to Order 42, Rule 6 of the Civil Procedure Rules.
E. Analysis and Determination:
12. It is trite that the principles guiding applications for stay of execution of the decree and/or order pending hearing and determination of appeal is anchored under Order 42 Rule 6 of the Civil Procedure Rules, 2010 which stipulates as follows: -
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.”
13.Pursuant to the provisions of order 42 rule 6 of the Civil Procedure Rules 2010, stay of execution pending determination of an appeal can be granted upon the Applicant satisfying the three principles being proof of substantial loss will occur if stay of execution is not granted, application was filed without inordinate delay and Applicant is ready to offer security pending hearing and determination of the appeal.
14. In regard to delay on the part of Applicants in filing the Application, the impugned ruling of the Business Premises Rent Tribunal was delivered on 9th July 2026 whereas the Application dated 15.7.2026 was filed on the 16.7.2026. The Application was filed in less than 10 days from the date of the impugned ruling hence find no delay on part of Applicants/Appellants.
15.As to whether the Applicants will suffer substantial loss unless execution of the Business premises rent tribunal in Tribunal Case Nos. BPRT/E031 of 2026 and BPRT/E618 of 2026 are stayed pending the hearing and determination of the Appeal, this court must interrogate what constitutes substantial loss in light of the case of. t/a Machira & Co Advocates v East African Standard [2002] KEHC 1167 (KLR) in which it was held as follows: -
“In attempting to convince a court that substantial loss is likely to be suffered so that whatever he intends to achieve by his intended recourse to some other authority will be nugatory if ultimately, he prevails, the applicant is under a duty to do more than merely repeating to the court words of the relevant statutory rule or general words used in some judgment or ruling of a court in a decided case cited as a judicial precedent to guide. It is not enough merely to state that substantial loss will result, or that the appeal if successful will be rendered nugatory. That will not do.
If the applicant cites, as a ground, substantial loss, the kind of loss likely to be sustained must be specified, details or particulars thereof must be given, and the conscience of the court, looking at what will happen unless a suspension or stay is ordered, must be satisfied that such loss will really ensue and that if it comes to pass, the applicant is likely to suffer substantial injury by letting the other party proceed further with what may still be remaining to be done or in execution of an awarded decree or order, before disposal of the applicant’s business (eg appeal or intended appeal).
Sometimes litigants seek to go to a higher court or to ask for review, and simultaneously ask for further steps or execution to be stopped while they go forth, for reasons of expressing their unhappiness with what has been decided. Where no pecuniary or tangible loss is shown to the satisfaction of the court, the court will not grant a stay merely on the ground of annoyance to feelings. Indeed, remote contingencies would not warrant the court’s interference with the ordinary course of justice and the process of law.
Moreover, a court will not order a stay upon a mere vague speculation; there must be the clearest ground of necessity disclosed on evidence. Commonly, the applicant may obtain a stay of further proceedings or execution, if he shows facts which point to a conclusion that to allow execution or further proceedings to go ahead before appeal concluded would let an impecunious party to pocket and squander or pilfer what may be needed in restitution if the appeal succeeds and is allowed. Another common factor in favour of the applicant is whether to proceed further or to execute may destroy the subject matter of the action and deprive the appellant or intended appellant of the means of prosecuting the appeal or intended appeal. So, really, stay is normally not to be granted, save in exceptional circumstances.”
16. In the case of James Wangalwa & Another v. Agnes Naliaka Cheseto [2012] KEHC 1094 (KLR) where the court held:-
“ 11. No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process.
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. This is what substantial loss would entail, a question that was aptly discussed in the case of Silverstein N. Chesoni [2002] 1KLR 867, and also in the case of Mukuma V Abuoga quoted above. The last case, referring to the exercise of discretion by the High Court and the Court of Appeal in the granting stay of execution, under Order 42 of the CPR and Rule 5(2) (b) of the Court of Appeal Rules, respectively, emphasized the centrality of substantial loss thus: “…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.”
With this observation, of course, a frivolous appeal cannot in practical terms be rendered nugatory. The only admonition however, is that the High Court should not base the exercise of its discretion under order 42 Rule 6of the CPR only on the chances of the success of the appeal. Much more is needed in accordance with the test I have set out above.”
17. The Appellants/Applicants submit that the Business premises rent tribunal erred in failing to consider the Respondents’ alleged unlawful invasion, intimidation, interference with the suit premises, destruction of school property and unlawful rent increment, which they contend disrupted the operations of Royal Schools, resulting in loss of approximately 100 learners and substantial revenue hence the appeal. The record show that the tenancy agreement expired in October 2025 though the Appellants/Applicants were served with a termination notice effective 1st June, 2026.
18. The Applicants vide the impugned ruling of the tribunal dated 9.7.2026 are faced with looming danger of eviction in performance of the decree against them by the Respondents though the Appeal is pending hearing and determination but due for admission for hearing hence the harm and /or loss to be suffered if evicted out of the suit premise(s) pending hearing and determination of appeal cannot be compensated by damages. The Applicants have demonstrated substantial loss likely to be suffered if stay of execution order is not granted.
19. As to whether the appeal will be rendered nugatory, this court is guided by the principles laid down by the Court of Appeal in Stanley Kangethe Kinyanjui v. Tony Ketter & 5 others [2013] KECA 378 (KLR) which stipulated as follows:-
iv) In considering whether an appeal will be rendered nugatory the court must bear in mind that each case must depend on its own facts and peculiar circumstances. David Morton Silverstein v Atsango Chesoni, Civil Application No. Nai 189 of 2001.
v) An applicant must satisfy the court on both of the twin principles.
vi) On whether the appeal is arguable, it is sufficient if a single bonafide arguable ground of appeal is raised. Damji Pragji Mandavia v Sara Lee Household & Body Care (K) Ltd, Civil Application No. Nai 345 of 2004.
vii) An arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully before the court; one which is not frivolous. Joseph Gitahi Gachau & Another v. Pioneer Holdings (A) Ltd. & 2 others, Civil Application No. 124 of 2008.
viii) In considering an application brought under Rule 5 (2) (b) the court must not make definitive or final findings of either fact or law at that stage as doing so may embarrass the ultimate hearing of the main appeal. Damji Pragji (supra).
ix) The term “nugatory” has to be given its full meaning. It does not only mean worthless, futile or invalid. It also means trifling. Reliance Bank Ltd v Norlake Investments Ltd [2002] 1 EA 227 at page 232.
x) Whether or not an appeal will be rendered nugatory depends on whether or not what is sought to be stayed if allowed to happen is reversible; or if it is not reversible whether damages will reasonably compensate the party aggrieved.
xi) Where it is alleged by the applicant that an appeal will be rendered nugatory on account of the respondent's alleged impecunity, the onus shifts to the latter to rebut by evidence the claim. International Laboratory for Research on Animal Diseases v Kinyua, [1990] KLR 403.”
20. From the cited case law above the applicant is to demonstrate that the appeal as filed raises triable issues and the damage likely to be suffered is irreversible if stay of execution order is not granted. The material before the Court demonstrates that the Appeal raises arguable triable issues, in particular whether the tenancy was controlled within the meaning of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301, the legality of the Respondents’ rent increment among other issues raised. The Appellants/Applicants further invoke the Court’s supervisory jurisdiction in respect to Section 11 of the Fair Administrative Action Act and Sections 8(2) and 9(1)(b) of the Law Reform Act, challenging the actions of the Respondents cited in the grounds of appeal. These issues can be articulated at the hearing and determination of Appeal. In the likely event the appeal succeeds, and decree shall have been executed against Applicants/Appellants, reinstatement of the applicants to the suit premises will be impossible. The appeal shall be rendered nugatory if impugned decree of the tribunal dated 9.7.2026 is not stayed pending hearing and determination of appeal.
21. The final limb of the condition’s precedent to the grant of a stay of execution pending appeal concerns provision of security for due performance of the decree or order. on the 16.7.2026 the Court imposed interim condition requiring the Appellants/Applicants to deposit security in the sum of Kshs. 200,000.00 pending hearing and determination of the application interpartes . The Appellants/Applicants duly complied with the order and deposited the stipulated sum in court ON 29.6.2026. The Respondents acknowledged compliance by the applicants in their submissions dated 8.8.2026 as follows: T he Appellants have only deposited a sum of Kshs. 200,000/= which is grossly insufficient to secure the outstanding rent arrears. The issue is, consequently, not one of non-compliance, but whether the conditional security already furnished is sufficient in the circumstances.
22. Order 42 Rule 6(2)(b) of the Civil Procedure Rules 2010 calls upon a court of law while granting a stay of execution order to balance the competing rights of the parties by requiring such security as may ultimately be binding upon the Applicants/Appellants for the due performance of decree pending hearing and determination of the appeal. The Applicants/Appellants furnished kshs 200,000/= as conditional security prescribed by the Court though asserted as inadequate by the Respondents. The essence of providing security for due performance of the decree is to ensure that the successful party is not denied the fruits of its judgment as restated in the case of Pannar Seeds (k) ltd vs Gogar farm limited (2024)eklr.
23. This court has discretion to convert the interim deposit of kshs 200,000/= as security pending hearing and determination of appeal in the spirit of balancing the scales of justice between the Applicants and Respondent or impose further conditions for compliance by the Applicants/Appellants in cushioning the interest of the judgement creditor herein. To safeguard the interest of the Respondents, the Applicants need to provide security for undisputed accrued sum of kshs 138000/ and subsequent monthly rents payable to Respondents effective July 2026 pending hearing and determination of the appeal on terms to be dictated by the court.
24: As to who to pay costs of the application the appeal is pending hearing and determination hence costs will abide by the outcome of the appeal.
F. Final orders:
25. Accordingly, it is the court’s finding that the Application is meritorious and allowed on following terms:
a.The Application for stay of execution of the decree/ruling dated 9.7.2026 is granted pending the hearing and determination of the appeal.
b. The sum of kshs 200000/= deposited in court on the 29.6.2026 by Applicants is converted as security for due performance of the decree pending hearing and determination of the Appeal.
c. The Applicants to deposit the undisputed rent arrears of kshs 138,000/=in court within 30 days from the date hereof.
d. The Applicants shall deposit the accrued monthly rents for the month of July,2026 and August,2026 if not paid up to Respondents in court within 30days from the date of this ruling.
e. The Applicants shall deposit monthly rents for September 2026 and subsequent months in court on the 30 day of the subsequent months pending hearing and determination of the appeal.
f. In default of compliance with any of the conditions above (c &d) on due dates, the stay order of execution shall be deemed as lapsed and Respondents shall be at liberty to execute the decree.
g. The Appeal be disposed of expeditiously, the Appellants to prepare, file and serve the record of appeal upon the Respondents within 21 days from the date hereof.
h. Mention on the 22.10.2026 for directions on compliance and disposal of appeal.
I. Costs of the Application to abide by outcome of the Appeal.
It is so ordered.
DATED, DELIVERED AND SIGNED IN OPEN COURT AT VOI THIS 16.9.2026 IN THE PRESENCE OF:
2nd APPLICANT/APPELLANT
Ms Kilima for the Respondents
DAVID- Court Assistant.
But absence of 1st Appellant
BY J A ORWA( JUDGE).
1.Before this court for ruling is the Applicants’ Application dated 15.7.2026 brought pursuant to Articles 159 (1) (d), 47(1), 50(1) of the Constitution of the Republic of Kenya, 2010, Sections 8(2) & 9(1)(b) of the Law Reform Act, Cap 26, & 11 of the Fair Administrative Act No. 4 of 2015, Order 42 Rule 6 of the Civil Procedure Rules, 2010 and all other enabling Laws of Kenya for orders that: -
a) THAT this application be certified urgent and heard ex-parte in the first instance.
b) THAT upon hearing this Application ex-parte, this Honorable Court be pleased to issue an interim Order of stay of execution of the Ruling delivered by the Business Premises Rent Tribunal in Tribunal Case No. BPRT/E031 of 2026 consolidated with Tribunal Case No. BPRT/E618 of 2026 delivered on the 9th of July 2026 together with all the resultant consequential orders flowing therefrom, pending determination of the same inter partes
c)THAT upon hearing this Application inter partes this Honorable Court be pleased to issue a permanent Order of stay of execution of the Ruling delivered by the Business Premises Rent Tribunal in Tribunal Case No. BPRT/E031 of 2026 consolidated with Tribunal Case No. BPRT/E618 of 2026 delivered on 9th July 2026 together with all the resultant consequential orders flowing therefrom, pending final determination of the main suit.
d)THAT the costs of this Application be provided for.
2. The Application is supported by the affidavits of Peter Otieno sworn on 15.07. 2026 and grounds on the face of it.
3.The Application was opposed by Respondents vide a Replying Affidavit sworn by Marjorie Marigu Nyagah (1st Respondent) on 24.07.2026.
4. The Applicants/Appellants contended that they have an arguable appeal that shall be rendered nugatory should order of stay of execution of the ruling of business premises rent tribunal dated 9.7.2026 be not granted thereby subjecting them to loss that cannot be compensated by costs. The Applicants averred that their appeal shall be rendered nugatory and are willing to provide security on terms set by the court.
5.The Respondents deny the Appellants’ allegations of invasion, theft and misconduct, maintaining that the Tribunal properly exercised its discretion. She contended further that the Applicants have persistently defaulted in payment of rent and failed to comply with the Tribunal’s orders and their undertaking to vacate and clear the outstanding arrears. She relies on rent statements, M-Pesa records and other documentary evidence in support of the alleged rent payment defaults.
6. The 1st Respondent averred that the allegations of invasion and theft are unsubstantiated and were investigated without any adverse findings against her. The 1 st respondent contended that the Applicants approached the court with unclean hands and abusing the Court process and their continued occupation of the premises without payment of rent amounts to unjust enrichment by the Applicants and prejudices her proprietary rights.
7. On Application for stay of execution of the decree pending hearing and determination of appeal the Respondents argued that the Appellants have demonstrated no substantial loss, offered no security for due performance of decree and not established an arguable appeal warranting interference with the Tribunal’s orders. The Respondents contended that the landlord-tenant relationship has irretrievably broken down and balance of convenience tilts in her favor.
B. Directions of the Court:
8. On 16.07.2026, the Court granted a conditional stay of execution of the Ruling dated 9.07.2026, for deposit of Kshs. 200,000.00 in court by the Applicants/appellants pending interpartes hearing of the application which the Applicants complied with.
9. On 30.07.2026 by consent of the parties, the Court directed that the Application be canvassed by way of written submissions which the parties complied with.
C. Submissions by Parties:
10. The Appellants/Applicants and Respondents complied by filing their written submissions dated 3 rd August 2026 and 10 th August 2026 respectively which I have considered so to the cited decided cases.
D. Issue for determination:
11. Whether the Appellants/Applicants have satisfied the legal threshold for grant a stay of execution of the Ruling 09.07.2026 pursuant to Order 42, Rule 6 of the Civil Procedure Rules.
E. Analysis and Determination:
12. It is trite that the principles guiding applications for stay of execution of the decree and/or order pending hearing and determination of appeal is anchored under Order 42 Rule 6 of the Civil Procedure Rules, 2010 which stipulates as follows: -
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.”
13.Pursuant to the provisions of order 42 rule 6 of the Civil Procedure Rules 2010, stay of execution pending determination of an appeal can be granted upon the Applicant satisfying the three principles being proof of substantial loss will occur if stay of execution is not granted, application was filed without inordinate delay and Applicant is ready to offer security pending hearing and determination of the appeal.
14. In regard to delay on the part of Applicants in filing the Application, the impugned ruling of the Business Premises Rent Tribunal was delivered on 9th July 2026 whereas the Application dated 15.7.2026 was filed on the 16.7.2026. The Application was filed in less than 10 days from the date of the impugned ruling hence find no delay on part of Applicants/Appellants.
15.As to whether the Applicants will suffer substantial loss unless execution of the Business premises rent tribunal in Tribunal Case Nos. BPRT/E031 of 2026 and BPRT/E618 of 2026 are stayed pending the hearing and determination of the Appeal, this court must interrogate what constitutes substantial loss in light of the case of. t/a Machira & Co Advocates v East African Standard [2002] KEHC 1167 (KLR) in which it was held as follows: -
“In attempting to convince a court that substantial loss is likely to be suffered so that whatever he intends to achieve by his intended recourse to some other authority will be nugatory if ultimately, he prevails, the applicant is under a duty to do more than merely repeating to the court words of the relevant statutory rule or general words used in some judgment or ruling of a court in a decided case cited as a judicial precedent to guide. It is not enough merely to state that substantial loss will result, or that the appeal if successful will be rendered nugatory. That will not do.
If the applicant cites, as a ground, substantial loss, the kind of loss likely to be sustained must be specified, details or particulars thereof must be given, and the conscience of the court, looking at what will happen unless a suspension or stay is ordered, must be satisfied that such loss will really ensue and that if it comes to pass, the applicant is likely to suffer substantial injury by letting the other party proceed further with what may still be remaining to be done or in execution of an awarded decree or order, before disposal of the applicant’s business (eg appeal or intended appeal).
Sometimes litigants seek to go to a higher court or to ask for review, and simultaneously ask for further steps or execution to be stopped while they go forth, for reasons of expressing their unhappiness with what has been decided. Where no pecuniary or tangible loss is shown to the satisfaction of the court, the court will not grant a stay merely on the ground of annoyance to feelings. Indeed, remote contingencies would not warrant the court’s interference with the ordinary course of justice and the process of law.
Moreover, a court will not order a stay upon a mere vague speculation; there must be the clearest ground of necessity disclosed on evidence. Commonly, the applicant may obtain a stay of further proceedings or execution, if he shows facts which point to a conclusion that to allow execution or further proceedings to go ahead before appeal concluded would let an impecunious party to pocket and squander or pilfer what may be needed in restitution if the appeal succeeds and is allowed. Another common factor in favour of the applicant is whether to proceed further or to execute may destroy the subject matter of the action and deprive the appellant or intended appellant of the means of prosecuting the appeal or intended appeal. So, really, stay is normally not to be granted, save in exceptional circumstances.”
16. In the case of James Wangalwa & Another v. Agnes Naliaka Cheseto [2012] KEHC 1094 (KLR) where the court held:-
“ 11. No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process.
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. This is what substantial loss would entail, a question that was aptly discussed in the case of Silverstein N. Chesoni [2002] 1KLR 867, and also in the case of Mukuma V Abuoga quoted above. The last case, referring to the exercise of discretion by the High Court and the Court of Appeal in the granting stay of execution, under Order 42 of the CPR and Rule 5(2) (b) of the Court of Appeal Rules, respectively, emphasized the centrality of substantial loss thus: “…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.”
With this observation, of course, a frivolous appeal cannot in practical terms be rendered nugatory. The only admonition however, is that the High Court should not base the exercise of its discretion under order 42 Rule 6of the CPR only on the chances of the success of the appeal. Much more is needed in accordance with the test I have set out above.”
17. The Appellants/Applicants submit that the Business premises rent tribunal erred in failing to consider the Respondents’ alleged unlawful invasion, intimidation, interference with the suit premises, destruction of school property and unlawful rent increment, which they contend disrupted the operations of Royal Schools, resulting in loss of approximately 100 learners and substantial revenue hence the appeal. The record show that the tenancy agreement expired in October 2025 though the Appellants/Applicants were served with a termination notice effective 1st June, 2026.
18. The Applicants vide the impugned ruling of the tribunal dated 9.7.2026 are faced with looming danger of eviction in performance of the decree against them by the Respondents though the Appeal is pending hearing and determination but due for admission for hearing hence the harm and /or loss to be suffered if evicted out of the suit premise(s) pending hearing and determination of appeal cannot be compensated by damages. The Applicants have demonstrated substantial loss likely to be suffered if stay of execution order is not granted.
19. As to whether the appeal will be rendered nugatory, this court is guided by the principles laid down by the Court of Appeal in Stanley Kangethe Kinyanjui v. Tony Ketter & 5 others [2013] KECA 378 (KLR) which stipulated as follows:-
iv) In considering whether an appeal will be rendered nugatory the court must bear in mind that each case must depend on its own facts and peculiar circumstances. David Morton Silverstein v Atsango Chesoni, Civil Application No. Nai 189 of 2001.
v) An applicant must satisfy the court on both of the twin principles.
vi) On whether the appeal is arguable, it is sufficient if a single bonafide arguable ground of appeal is raised. Damji Pragji Mandavia v Sara Lee Household & Body Care (K) Ltd, Civil Application No. Nai 345 of 2004.
vii) An arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully before the court; one which is not frivolous. Joseph Gitahi Gachau & Another v. Pioneer Holdings (A) Ltd. & 2 others, Civil Application No. 124 of 2008.
viii) In considering an application brought under Rule 5 (2) (b) the court must not make definitive or final findings of either fact or law at that stage as doing so may embarrass the ultimate hearing of the main appeal. Damji Pragji (supra).
ix) The term “nugatory” has to be given its full meaning. It does not only mean worthless, futile or invalid. It also means trifling. Reliance Bank Ltd v Norlake Investments Ltd [2002] 1 EA 227 at page 232.
x) Whether or not an appeal will be rendered nugatory depends on whether or not what is sought to be stayed if allowed to happen is reversible; or if it is not reversible whether damages will reasonably compensate the party aggrieved.
xi) Where it is alleged by the applicant that an appeal will be rendered nugatory on account of the respondent's alleged impecunity, the onus shifts to the latter to rebut by evidence the claim. International Laboratory for Research on Animal Diseases v Kinyua, [1990] KLR 403.”
20. From the cited case law above the applicant is to demonstrate that the appeal as filed raises triable issues and the damage likely to be suffered is irreversible if stay of execution order is not granted. The material before the Court demonstrates that the Appeal raises arguable triable issues, in particular whether the tenancy was controlled within the meaning of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301, the legality of the Respondents’ rent increment among other issues raised. The Appellants/Applicants further invoke the Court’s supervisory jurisdiction in respect to Section 11 of the Fair Administrative Action Act and Sections 8(2) and 9(1)(b) of the Law Reform Act, challenging the actions of the Respondents cited in the grounds of appeal. These issues can be articulated at the hearing and determination of Appeal. In the likely event the appeal succeeds, and decree shall have been executed against Applicants/Appellants, reinstatement of the applicants to the suit premises will be impossible. The appeal shall be rendered nugatory if impugned decree of the tribunal dated 9.7.2026 is not stayed pending hearing and determination of appeal.
21. The final limb of the condition’s precedent to the grant of a stay of execution pending appeal concerns provision of security for due performance of the decree or order. on the 16.7.2026 the Court imposed interim condition requiring the Appellants/Applicants to deposit security in the sum of Kshs. 200,000.00 pending hearing and determination of the application interpartes . The Appellants/Applicants duly complied with the order and deposited the stipulated sum in court ON 29.6.2026. The Respondents acknowledged compliance by the applicants in their submissions dated 8.8.2026 as follows: T he Appellants have only deposited a sum of Kshs. 200,000/= which is grossly insufficient to secure the outstanding rent arrears. The issue is, consequently, not one of non-compliance, but whether the conditional security already furnished is sufficient in the circumstances.
22. Order 42 Rule 6(2)(b) of the Civil Procedure Rules 2010 calls upon a court of law while granting a stay of execution order to balance the competing rights of the parties by requiring such security as may ultimately be binding upon the Applicants/Appellants for the due performance of decree pending hearing and determination of the appeal. The Applicants/Appellants furnished kshs 200,000/= as conditional security prescribed by the Court though asserted as inadequate by the Respondents. The essence of providing security for due performance of the decree is to ensure that the successful party is not denied the fruits of its judgment as restated in the case of Pannar Seeds (k) ltd vs Gogar farm limited (2024)eklr.
23. This court has discretion to convert the interim deposit of kshs 200,000/= as security pending hearing and determination of appeal in the spirit of balancing the scales of justice between the Applicants and Respondent or impose further conditions for compliance by the Applicants/Appellants in cushioning the interest of the judgement creditor herein. To safeguard the interest of the Respondents, the Applicants need to provide security for undisputed accrued sum of kshs 138000/ and subsequent monthly rents payable to Respondents effective July 2026 pending hearing and determination of the appeal on terms to be dictated by the court.
24: As to who to pay costs of the application the appeal is pending hearing and determination hence costs will abide by the outcome of the appeal.
F. Final orders:
25. Accordingly, it is the court’s finding that the Application is meritorious and allowed on following terms:
a.The Application for stay of execution of the decree/ruling dated 9.7.2026 is granted pending the hearing and determination of the appeal.
b. The sum of kshs 200000/= deposited in court on the 29.6.2026 by Applicants is converted as security for due performance of the decree pending hearing and determination of the Appeal.
c. The Applicants to deposit the undisputed rent arrears of kshs 138,000/=in court within 30 days from the date hereof.
d. The Applicants shall deposit the accrued monthly rents for the month of July,2026 and August,2026 if not paid up to Respondents in court within 30days from the date of this ruling.
e. The Applicants shall deposit monthly rents for September 2026 and subsequent months in court on the 30 day of the subsequent months pending hearing and determination of the appeal.
f. In default of compliance with any of the conditions above (c &d) on due dates, the stay order of execution shall be deemed as lapsed and Respondents shall be at liberty to execute the decree.
g. The Appeal be disposed of expeditiously, the Appellants to prepare, file and serve the record of appeal upon the Respondents within 21 days from the date hereof.
h. Mention on the 22.10.2026 for directions on compliance and disposal of appeal.
I. Costs of the Application to abide by outcome of the Appeal.
It is so ordered.
DATED, DELIVERED AND SIGNED IN OPEN COURT AT VOI THIS 16.9.2026 IN THE PRESENCE OF:
2nd APPLICANT/APPELLANT
Ms Kilima for the Respondents
DAVID- Court Assistant.
But absence of 1st Appellant
BY J A ORWA( JUDGE).