Joseph Gitonga v Teresia Wanjiku Njoroge

Mombasa, seeking the adoption of the ruling and orders of the Tribunal as a decree for purposes of execution. The application was subsequently allowed on 10th July 2026. 4. The Applicant contends that unless this Court intervenes, the Respondent is likely to proceed with execution, thereby rendering the pending appeal nugatory. He maintains that he stands to suffer substantial loss if stay is not granted and that the appeal raises arguable The Judiciary of Kenya Doc IDENTITY: 4415562305917701552725714106 Tracking Number:OOT3HW2026 2/ 5

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and cogent grounds with high chances of success. He further contends that the Respondent will suffer no prejudice if stay is granted since the appeal is yet to be heard and determined. 5. The Application is opposed by the Respondent, Teresia Wanjiku Njoroge, through a replying affidavit sworn in response thereto. The Respondent contends that the Application is an attempt by the Applicant to prevent her from enjoying the fruits of the judgment in her favor. She maintains that she is entitled to commence execution, having successfully moved the subordinate court in Miscellaneous Application No. E188 of 2026, where the decision of the Business Premises Rent Tribunal was adopted as a decree of the court. 6. The Respondent further argues that the decree is monetary in nature and that there is no basis for contending that the appeal will be rendered nugatory merely because execution proceeds. She states that she is financially capable of refunding any monies paid pursuant to the decree should the appeal ultimately succeed. In this regard, she asserts that she owns several parcels of land and that the Applicant has not alleged that she is a person of straw or otherwise incapable of making restitution. 7. On the Applicant’s financial position, the Respondent expresses apprehension that the Applicant may not be financially capable of refunding the decretal sum or meeting any costs that may become payable. She bases this apprehension, in part, on the fact that the dispute arose from the Applicant’s default in payment of rent. She therefore contends that granting a stay would expose her to the risk of being unable to recover the decretal sum and costs. 8. The Respondent further argues that the Applicant has failed to satisfy the conditions for the grant of stay of execution, particularly because he has not offered any security for the due performance of the decree. She maintains that the Applicant has also failed to demonstrate the substantial loss he would suffer if stay is declined. 9. On the merits of the Appeal, the Respondent contends that the Memorandum of Appeal does not disclose an arguable appeal and that the appeal has no reasonable prospects of success. She consequently urges the Court to find that the Applicant has not met the threshold for the grant of stay of execution and to dismiss the application 10. The Application came up for hearing on 30th July 2026 and the court directed that parties file submissions. The Applicant filed submissions and the Respondent failed to do so. As at the writing of this The Judiciary of Kenya Doc IDENTITY: 4415562305917701552725714106 Tracking Number:OOT3HW2026 3/ 5

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ruling, the Respondent has not filed their submissions. Submissions Applicants 11. The Applicant submitted that the issue for determination is whether the threshold for the grant of stay of execution pending appeal has been met. He submits that Order 42 Rule 6 of the Civil Procedure Rules sets out the conditions upon which a court may grant stay of execution pending appeal. In particular, the Applicant submitted that the court must be satisfied that substantial loss may result to the applicant unless stay is granted, that the application has been made without unreasonable delay, and that such security as the court may order for the due performance of the decree or order has been furnished. 12. The Applicant further submitted that the purpose of stay pending appeal is to preserve The Judiciary of Kenya Doc IDENTITY: 4415562305917701552725714106 Tracking Number:OOT3HW2026 4/ 5

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the subject matter of the dispute and safeguard the appellant’s right of appeal so that, in the event the appeal succeeds, it is not rendered nugatory. 13. The Applicant referred to the two consolidated matters before the Business Premises Rent Tribunal, namely BPRT E146 of 2025, Joseph Mutero Gitonga v Teresiah Wanjiku Njoroge, and BPRT E353 of 2025, which were consolidated on 20th February 2026, with BPRT E146 of 2025 being designated as the lead file. It was submitted that the consolidated matters remain pending before the Tribunal and were scheduled for pre-trial on 31st August 2026. 14. The Applicant contended that, notwithstanding the pendency of the substantive proceedings, the Tribunal issued an interim order in April 2026 directing him to pay Kshs. 1,450,000 within 15 days. Thereafter, 20th May 2026, the Respondent filed Miscellaneous Application No. E188 of 2026, Teresiah Wanjiku Njoroge v Joseph Mutero Gitonga, before the subordinate court at Mombasa, seeking adoption of the Tribunal’s ruling and order as a decree for purposes of execution. The application was allowed on 10th July 2026, following which the Respondent extracted a decree and commenced the process of execution notwithstanding the pending appeal challenging the Tribunal’s interim ruling. 15. It was the Applicant’s submission that these circumstances led to the present application. The Applicant further submitted that he remains a tenant in another of the Respondent’s premises situated near the subject premises, therefore there remains a subsisting landlord-tenant relationship between the parties. 16. The Applicant argued that it would suffer substantial loss if compelled to pay the sum of Kshs. 1,450,000 before the substantive issues pending before the Tribunal are determined. According to the Applicant, compelling payment of the decretal sum at this stage would undermine the substratum of the consolidated proceedings and render the pending appeal nugatory. 17. On the meaning of substantial loss, the Applicant submitted that the term is relative and ought to be assessed from the totality of the consequences likely to be suffered by an applicant if execution is allowed to proceed. 18. The Applicant acknowledged that the mere commencement or likelihood of execution does not, by itself, constitute substantial loss, execution being a lawful process. He however submitted that the The Judiciary of Kenya Doc IDENTITY: 4415562305917701552725714106 Tracking Number:OOT3HW2026 5/ 5

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applicant must demonstrate circumstances showing that execution would create a state of affairs that would irreparably affect or negate the essential benefit of a successful appeal. The Applicant further relied on Silverstein v Chesoni [2002] 1 KLR 867 and Mukuma v Abuoga, where the courts underscored the centrality of substantial loss in applications for stay of execution, particularly because such loss may render an appeal nugatory. 19. Finally, the Applicant submitted that the appeal raises arguable and cogent grounds with a reasonable prospect of success. He consequently urged the Court to allow prayers 2 and 3 of the Notice of Motion dated 13th July 2026 and grant stay of execution pending the The Judiciary of Kenya Doc IDENTITY: 4415562305917701552725714106 Tracking Number:OOT3HW2026 6/ 5

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hearing and determination of the application and the appeal. Analysis and determination. 20. The Court has considered the application and the main issue for determination is whether orders of stay of execution pending appeal should issue. 21. Order 42 Rule 6 (1)(2) of the Civil Procedure Rules provides as follows;“(2)No order for stay of execution shall be made under sub rule (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. 22. In RWW V EKW [2019] eKLR the court held as follows:“...the purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs.” 23. For this court to grant an order of stay of execution, the Appellant must demonstrate that he filed the application under consideration without unreasonable delay, that he will suffer substantial loss if the orders sought are not granted and that he is willing to deposit security for costs. It is also noteworthy that the court should endeavour to balance the interests of both the successful party in litigation so as not to unnecessarily bar them from enjoying the fruits of judgment and that of the Appellant whose appeal may succeed and be rendered nugatory if stay of execution is not granted. 24. On the issue of substantial loss, the Applicant contends that the execution of the decree of Kshs. 1,450,000/= while the appeals is pending will render the appeal nugatory. The respondent on the other hand contends that the decree is monetary in nature and she is capable of refunding the decretal sum should the appeal succeed. The court notes that the Applicant has not demonstrated by evidence the substantial loss he would suffer. The fact that execution may proceed against him does not The Judiciary of Kenya Doc IDENTITY: 4415562305917701552725714106 Tracking Number:OOT3HW2026 7/ 5

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constitute substantial loss, as execution is a lawful process. 25. In Kenya Shell Limited v Benjamin Karuga Kibiru & anorther [1986] KECA 94 (KLR) the court stated that “substantial loss in its various forms, is the corner stone of both jurisdictions for granting a stay. That is what has to be prevented. Therefore, without this evidence it is difficult to see why the respondents should be kept out of their money.” 26. On whether the Application has been made without unreasonable delay, the ruling sought to be challenged was delivered on 7th April 2026, while the present application was filed on 13th July 2026. There being no evidence of unreasonable delay, this court finds that this requirement has been satisfied. The Judiciary of Kenya Doc IDENTITY: 4415562305917701552725714106 Tracking Number:OOT3HW2026 8/ 5

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27. As regards security, the Applicant is required to furnish security. The requirement of security is intended to balance the Applicants right to pursue an appeal and the Respondents right to enjoy the fruits of the judgment. The Applicant has offered none in the present case. 28. I do find that although the Applicant has demonstrated that the Application was filed without unreasonable delay, he has not established substantial loss as contemplated under Order 42 Rule 6(2) of the Civil Procedure rules. In the circumstance the Applicant has not met the threshold for grant of stay of execution pending Appeal. 29. Consequently, the Application dated 13th July 2026 id dismissed with costs to the Respondent. 30. Orders accordingly. SIGNED BY/FOR: ★ TH E JUDICIAR Y O F KENY A ★ HON. JUSTICE ANTONY O. OMBWAYO Mombasa Environment and Land Court Environment and Land Court Date: 2026-0924 12:41:57 The Judiciary of Kenya Doc IDENTITY: 4415562305917701552725714106 Tracking Number:OOT3HW2026 9/ 5

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