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ELCDismissedNot stated in judgment (appeal from BPRT Case No. E1134 of 2024)

Kome & 41 others v Islam (Environment and Land Appeal E167 of 2025) [2026] KEELC 3584 (KLR)

Environment and Land Court at Nairobi (as discernible from delivery 'at Nairobi')
11 June 2026
MKMOHAMMED N. KULLOW
932 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed that tenants appealing a rent tribunal decision cannot be forced to deposit millions unless they've actually applied for a stay of execution.

What this practically means

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Executive summary

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This is a ruling on the respondent's application dated 2nd February 2025, in an appeal against a Business Premises Rent Tribunal decision (BPRT Case No. E1134 of 2024). The respondent, the successful landlord before the Tribunal, sought an order that the Appellants/Tenants deposit Kshs. 4,418,260 in court as security pending the hearing of the appeal, contending that the appellants were in rental arrears, had failed to satisfy the Tribunal's costs despite succeeding against them, and might be unable to pay costs if the appeal failed. The appellants, through a replying affidavit sworn by Peter Kimanzi, opposed the application as an intimidation tactic, arguing that the respondent had not proved inability to pay costs nor demonstrated special circumstances warranting security. In submissions, the respondent relied on Order 26 Rule 1 of the Civil Procedure Rules and Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR; the appellants maintained the burden of proving incapacity to pay had not been discharged. The court held that no stay of execution application was before it, that deposit of security under Order 42 Rule 6 is a condition for stay and not a precondition of appeal, and that the application was therefore premature, lacking a legal foundation. The application was dismissed with costs to the appellants in the cause.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the respondent's application dated 2nd February 2025 seeking security for costs is merited

Key legal issues

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01

Whether security for costs can be ordered from appellants who have not sought stay of execution

Holding

The application fails because it is premature; the security deposit contemplated under Order 42(6) is a condition for the grant of stay of execution, and no such application had been filed by the appellants

Reasoning

The court reproduced Order 42 Rule 6 of the Civil Procedure Rules, 2010, which conditions a stay of execution on substantial loss, absence of unreasonable delay and the giving of security. Since the appellants never applied for stay, there was no procedural peg upon which the court could order the deposit of Kshs. 4,418,260. The respondent's apprehension about the appellants' ability to pay costs did not displace this structural defect, and the application was dismissed with costs to the appellants.

p. 3

Legal principles established

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  • An appeal does not operate as a stay of execution, and deposit of security is a condition for stay of execution under Order 42 Rule 6, not an independent requirement for lodging or prosecuting an appeal
  • A respondent cannot obtain an order for security tied to Order 42(6) where no stay of execution application exists

Court orders

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  1. 1.The application dated 2nd February 2025 is dismissed with costs to the appellants in the cause

The bench

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One judgment of the whole court — no separate or dissenting opinions.

MK
majority

Wrote the judgment

On appeal from
Business Premises Rent Tribunal
BPRT Case No. E1134 of 2024
Jurisdiction invoked
Appellate jurisdiction over decisions of the Business Premises Rent Tribunal; security for costs under Order 26 Rule 1 and Order 42 Rule 6 of the Civil Procedure Rules, 2010

Relief refused

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Order that the Appellants/Tenants deposit Kshs. 4,418,260 in court as security pending the hearing of the appeal

No stay of execution application was before the court; the deposit of security is a condition for stay under Order 42 Rule 6, not a standalone condition of appeal, so the application was premature

p. 3

Costs

Application dismissed with costs to the appellants in the cause

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The application dated 2nd February 2025 to be without merit for the foregoing reasons and is hereby dismissed with costs to the appellants in the cause.
p. 3Final orders - dismissal of security for costs application
It is important to note that the Appellants did not apply or file any application for Stay of Execution to warrant this Court’s intervention.
p. 3Prematurity of the security application
No appeal or second appeal shall operate as a stay of execution or proceeding under a decree or order appealed from except in so far as the court appealed from may order
p. 2Appeal does not operate as stay - Order 42 Rule 6

Issues in the judgment

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minor

Role labels are inconsistent in the ruling: the respondent brings the application yet counsel appearances read 'Prof Heshiro for the Applicant/Respondent' and 'Ms. Benedett for the Appellants/Respondents', leaving the appellants labelled both Appellants and Respondents

minor

The submissions are dated after the application in a manner suggesting typographical date inconsistencies (application dated 2nd February 2025, submissions dated 1st April 2026 and 30th April 2026, ruling delivered 11th June 2026)

minor

The judgment does not state its own case number or the court expressly; the tribunal reference (BPRT Case No. E1134 of 2024) and delivery venue at Nairobi are the only identifiers

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kome & 41 others v Islam (Environment and Land Appeal E167 of 2025) [2026] KEELC 3584 (KLR)", Case Analysis (2026). Not stated in judgment (appeal from BPRT Case No. E1134 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3584/eng@2026-06-11

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.