1.This ruling is in respect to the Application dated 2nd June 2023. The application was supported by an affidavit sworn by Zhang Hua Alias James in which the Applicant sought the following orders:
2.The grounds on the face of the application are: -
3.the Application was canvassed by way of written submissions. The Appellant filed submissions dated 14th July 2023 in which it was submitted that as per the Landlord’s valuation the Tenant owed Kshs 1,550,000/- in rent yet the Tribunal only considered the Tenant’s valuation report. Relying on Section 79G of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules, it was argued that there was substantial loss likely to the suffered by the Landlord.
4.The Tenant/Respondent filed a replying affidavit dated 17th July 2023 and submissions dated 3rd August 2023. It was submitted that the Appeal is an afterthought intended to cause further hardship and injustice. Relying on the cases involving Tulsi Construction Company Limited v Kenya Airports Parking Services Limited eKLR and Jason Ngumba Kagu &2 Others v Intra Africa Assurance Co Limited eKLR, it was submitted that the unreasonable delay had not been explained and substantial loss not proven. It was also submitted that the Appellant was silent on security for costs which as in the Tulsi case(supra) had become custom. It was argued that in this case, since payment of rent arrears was to the benefit of the Appellant, nothing would be rendered nugatory should stay or leave not be granted.
5.I have considered the application, the response to the same and the submissions filed by the respective counsel for the parties. The main issue which arises for determination is whether or not the application dated 2nd June 2023 is merited.
6.With regards to conditions for stay of execution, this Court is guided by Order 42 rule 6 (2) of the Civil Procedure Rules, 2010:
7.The Court of Appeal in Butt v Rent Restriction Tribunal  KLR 417 gave guidance on how a court should exercise discretion and held that:
8.In the instant case, the Tribunal delivered a ruling against the Applicant on 16th September 2022. Consequently, the Applicant filed a memorandum of appeal on 2nd June 2023 together with the Notice of Motion herein. This is nearly 9 months after delivery of the ruling. The Appellant alleged that the delay was due to the Tribunal’s failure to release a ruling notice. I believe this assertion is partially dispelled by the Tenant’s evidence of a judgment notice that was duly served by the Applicant on 19th August 2022. The Court remains cognizant that the notice was for judgment on 9th September 2022, a date that was inevitably deferred and judgment later delivered on 16th September 2022. On this premise, the Court finds the circumstances of the delay has been adequately explained.
9.The Appellant also averred that they stand to suffer substantial financial loss occasioned by the rent owed as a result of Respondent’s failure to uphold their tenancy agreement for several months. As a result, this Court is satisfied that the requirement on substantial loss has been demonstrated.
10.The Appellant also submitted that they had filed a memorandum of appeal which raised triable issues. The Respondent attacked the said grounds of appeal stating that the same were incompetent and fatally defective. However, at this stage the Court is not concerned with the merits or otherwise of the appeal as the applicable considerations in Order 42 Rule 6 of the Civil Procedure Rules do not include such a requirement.
11.On the final requirement on whether or not there is an offer for security, the Appellant did not offer any security. According to the Ruling of the Tribunal, each party was to bear their own costs. Additionally, since the Tenant had vacated the premises the Landlord was to file a claim for damages. In my opinion, the benefits for the Appellant in the BPRT Ruling far outweigh the Tenants. Nonetheless, it doesn’t disqualify the Tenant from enjoying possible fruits in the suits to come.
12.With regard to the issue of security, the court in Absalom Dova vs. Tarbo Transporters  eKLR, stated:
13.From the above decision, it is clear that the issue of security for costs is discretionary and it is upon the court to determine the same. It is not the duty of the Court to deny a successful litigant the fruits of his/her Judgment. Undoubtedly, the Applicant is desirous of exercising its right of Appeal and the Respondent wishes to have the matter finalized. To balance the competing interests of both parties, I allow the application and make the following orders: -
14.It is so ordered.