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Supreme CourtPartially AllowedPetition (Application) E039 of 2025

Intercountries Importers and Exporters Ltd v Teleposta Pension Scheme Registered Trustees & 5 others

Supreme Court of Kenya
3 July 2026
Philomena Mbete MwiluP. M. MwiluSmokin Charles WanjalaS. C. WanjalaIsaac LenaolaI. LenaolaWilliam OukoW. OukoMohamed Abdulahi WarsameM. A. Warsame
2,059 words in judgment
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The bottom line

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Supreme Court halts sale of disputed property pending appeal on public interest grounds.

What this practically means

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The Supreme Court of Kenya has stopped the sale of a property in Nairobi that is the subject of an ongoing appeal. The court found that the appeal raises serious legal questions about how titles acquired through public auctions under a bank’s power of sale should be treated. It also said that if the property were sold before the appeal is heard, the harm to the buyer would be irreversible. The court balanced the interests of all parties and the public, and decided that preserving the property until the case is resolved is the fairest outcome.

Executive summary

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This is a ruling on a Notice of Motion dated 17th December 2025 by Intercountries Importers & Exporters Limited (the applicant/appellant) seeking interim orders of stay of execution and injunction pending the hearing and determination of its appeal to the Supreme Court. The appeal challenges the Court of Appeal judgment of 12th July 2024 which overturned the High Court's decision and found that the suit property (LR No. 209/13238) was not unalienated land, that the allotment to the 5th respondent was irregular, and that the subsequent sale by the 6th respondent to the applicant under statutory power of sale was a nullity. The Supreme Court, applying the principles from Munya Vs Kithinji, found that the appeal is arguable as it raises a bona fide point of law regarding the applicability of the Dina Management Limited and Sehmi decisions to titles acquired through statutory power of sale. The court also found that absent the orders sought, further dealings with the suit property may occasion irreparable harm not compensable by damages, and that public interest tilts in favour of granting a conservatory order. However, the prayer for stay of execution was declined as the impugned judgment had already been executed and the property restored to the 1st respondent. The court issued a conservatory order of injunction restraining the 1st respondent from selling, charging or otherwise disposing of the suit property pending the hearing and determination of the appeal, with costs to abide the outcome of the appeal.

Questions the Court framed

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

  1. 1.Whether the appeal is arguable and not frivolous
  2. 2.Whether the appeal would be rendered nugatory absent an order of stay
  3. 3.Whether public interest tilts in favour of granting a conservatory order

Key legal issues

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01

Whether the appeal is arguable

Holding

The appeal is arguable as it raises a bona fide point of law regarding the applicability of the rationes decidendi in Dina Management Limited case and Sehmi to the transfer or acquisition of title through a public auction conducted pursuant to a chargee's exercise of its statutory power of sale.

Reasoning

The court examined the grounds of the application and the supporting affidavit, noting that the applicant contends the appeal raises substantial issues of law affecting the banking and lending sector, particularly the statutory protection afforded to purchasers under a statutory power of sale pursuant to Section 99(3) of the Land Act. The court found that this issue is not frivolous and has substance, thus satisfying the first condition for grant of stay.

p. 4
02

Whether the appeal would be rendered nugatory absent an order of stay

Holding

Absent the orders sought, further dealings with the suit property may occasion irreparable harm that may not be readily reversible or adequately compensated by an award of damages, should the appeal ultimately succeed.

Reasoning

The court considered that the 1st respondent may dispose of, charge, or otherwise alienate the suit property, thereby defeating the substratum of the appeal. The court also noted that the 6th respondent, against whom the applicant was directed to seek recourse, is under liquidation and lacks the financial capacity to compensate the applicant. Therefore, damages would not be an adequate remedy.

p. 4
03

Whether public interest tilts in favour of granting a conservatory order

Holding

Balancing the loss and uncertainty which would be occasioned to the applicant as against the respondents and the public, public interest tilts in favour of granting a conservatory order of injunction to preserve the substratum of the appeal.

Reasoning

The court balanced the interests of the applicant, the respondents, and the public. It found that no prejudice would be occasioned to the respondents by the grant of such order, while the applicant would suffer irreparable harm if the order is not granted. The court also noted that the issues transcend the interests of the parties and bear significant implications for the banking sector.

p. 4

Legal principles established

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  • A stay of execution now requires a third condition: public interest, under the Constitution of Kenya 2010.
  • An arguable appeal is one that has substance and is not frivolous, assessed at a prima facie level.
  • The nugatory aspect asks whether the harm is reversible or can be adequately compensated by damages.
  • A conservatory order can be granted to preserve the subject matter of an appeal pending hearing.
  • Public interest tilts towards granting an order where the issues affect the banking sector and beyond.
  • Costs of an interim application will follow the outcome of the final appeal.

Court orders

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  1. 1.A conservatory order of injunction is hereby issued restraining the 1st respondent or its agents or assignees from selling, charging or otherwise disposing of the suit property, pending the hearing and determination of the appeal.
  2. 2.Costs of this application shall abide the outcome of the appeal.

The bench

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

Philomena Mbete Mwilu
P. M. MwiluDCJ
Currently serving
majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
William Ouko
W. OukoSCJ
Currently serving
majority
Mohamed Abdulahi Warsame
M. A. WarsameSCJ
Currently serving
majority
On appeal from
Court of Appeal at Nairobi
Civil Appeal No. 293 of 2016
Jurisdiction invoked
Section 23A of the Supreme Court Act, as read with Rule 3(5) of the Supreme Court Rules

Relief refused

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Prayer for stay of execution of the Judgment of the Court of Appeal dated 12th July 2024 in Civil Appeal No. 293 of 2016

The impugned judgment has already been executed and the suit property restored to the 1st respondent, as evidenced by the Certificate of Lease dated 22nd September 2025 annexed to the 1st respondent's Replying Affidavit.

p. 5

Costs

Costs of this application shall abide the outcome of the appeal.

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 appeal is arguable; it raises a bona fide point of law regarding the applicability of the rationes decidendi in Dina Management Limited case and Sehmi [supra] to the transfer or acquisition of title through a public auction conducted pursuant to a chargee's exercise of its statutory power of sale.
p. 4 Arguability of appeal
Absent the orders sought, further dealings with the suit property may occasion irreparable harm that may not be readily reversible or adequately compensated by an award of damages, should the appeal ultimately succeed.
p. 4 Nugatory aspect of appeal
A conservatory order of injunction is hereby issued restraining the 1st respondent or its agents or assignees from selling, charging or otherwise disposing of the suit property, pending the hearing and determination of the appeal.
p. 5 Final orders
Costs of this application shall abide the outcome of the appeal.
p. 5 Costs order

Key timeline

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2024-07-12
Court of Appeal judgment: property sale to buyer declared a nullity, title restored to Teleposta Pension Fund.
2025-12-17
Appellant files Notice of Motion for stay and injunction pending Supreme Court appeal.
2026
Supreme Court grants conservatory order, restraining sale or disposal of the property.

Practical implications

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For lawyers

New third condition for stay

When arguing for a stay of execution or conservatory order, you must now explicitly address public interest as a separate condition, not just arguability and nugatory effect. Frame your submissions around how the case affects the public, especially if it involves land law, banking, or statutory interpretation. Cite the Supreme Court's reasoning in this case to strengthen your application.

For businesses

Risk when buying at auction

If you buy property through a bank's statutory power of sale, your title may be challenged even years later. This case shows that the Supreme Court can stop further dealings with the property while an appeal is heard. Banks and buyers should ensure all steps of the auction and transfer comply strictly with the Land Act, and consider that public interest arguments may delay finality of ownership.

For individuals

Property bought at auction may be at risk

If you purchase land at a public auction conducted by a bank, and the original owner later challenges the sale, the case can go all the way to the Supreme Court. Even after the Court of Appeal rules against you, you can ask the Supreme Court to stop the property from being resold while your appeal is heard. This buys time but does not guarantee you will keep the land.

Frequently asked questions

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What is a conservatory order in Kenya?+

A conservatory order is a court order that stops a party from taking any action that could change the status of a property or matter until a case is fully decided. In this case, the Supreme Court used it to prevent Teleposta Pension Fund from selling or charging the disputed land while the appeal is pending.

Can a buyer at a public auction lose the property even after paying the full price in Kenya?+

Yes, if the sale is later challenged in court and found to be irregular. In this case, the Court of Appeal ruled that the auction was a nullity. The Supreme Court then allowed the buyer to appeal and stopped further dealings. The final outcome will determine if the buyer keeps the land.

What does public interest mean in a Kenyan court stay application?+

Public interest means the court looks at whether granting or denying a stay affects the broader community, not just the parties. Here, the Supreme Court considered that the legal issues impact the entire banking and lending sector in Kenya, so it was in the public interest to preserve the property until the appeal is heard.

How long does a Supreme Court appeal take in Kenya?+

There is no fixed timeline, but interim applications like this one are usually decided quickly. The full appeal may take months or over a year. In this case, the Supreme Court issued the conservatory order in 2026, with the appeal still pending. The order will last until the appeal is finally determined.

Later judgments citing this (11)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Intercountries Importers and Exporters Ltd v Teleposta Pension Scheme Registered Trustees & 5 others", Case Analysis (2026). Petition (Application) E039 of 2025. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2026/49/eng@2026-07-03

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