Intercountries Importers and Exporters Limited v Telposta Pension Scheme Registered Trustees & 5 others (Civil Appeal (Application) 293 of 2016) [2025] KECA 1367 (KLR)
The bottom line
#The Court of Appeal allowed Intercountries' case to proceed to the Supreme Court but refused to pause its own judgment, meaning the decision takes effect now.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the intended appeal to the Supreme Court raises a matter of general public importance warranting certification under Article 163(4)(b) of the Constitution
- 2.Whether the Court of Appeal has jurisdiction to grant a stay of execution of its own final judgment pending an intended appeal to the Supreme Court
Key legal issues
#Certification of matters of general public importance under Article 163(4)(b)
The intended appeal raises substantial questions of law affecting a substantial number of the public - the application of the Land Act to repealed land statutes, the reach of Dina Management to purchasers from chargees' statutory power of sale, and the extent of a purchaser's duty to investigate root of title - warranting certification and leave to appeal.
Applying the Steyn v Gnecchi-Ruscone criteria, the Court found the identified issues were live in the courts below, were substantial questions of law rather than mere questions of fact, and affected the lending/financing sector and purchasers acquiring titles through exercise of chargees' statutory powers of sale. The Court cautioned itself against venturing into the merits of the intended appeal.
Jurisdiction to grant stay of execution after final judgment
Rule 5(2)(b) confers power to grant interim relief only pending the hearing of the main appeal before the Court of Appeal; once final judgment is delivered the Court is functus officio and cannot grant stay pending an appeal to the Supreme Court.
Relying on Dickson Muricho Muriuki v Timothy Kagondu Muriuki, the Court held that the functus officio principle, grounded in public policy favouring finality, prevents re-opening of a concluded matter absent statutory authority, and it is inadvisable for the Court to issue stay orders after delivery of its judgment.
Legal principles established
#- For certification under Article 163(4)(b), the applicant must show a substantial point of law transcending the particular case with a significant bearing on the public interest, arising from and determined by the courts below.
- The Court of Appeal has no jurisdiction to stay execution of, or grant conservatory orders in respect of, its own final judgment pending an intended appeal to the Supreme Court; it is functus officio upon delivery of final judgment.
Court orders
#- 1.The intended appeal by Intercountries Importers and Exporters Limited is certified as raising matters of general public importance
- 2.Leave granted to the applicant to appeal to the Supreme Court against the judgment of the Court of Appeal (Okwengu, Mativo and Ngenyе, JJA) delivered 12th July 2024
- 3.The prayer for stay of execution of the said judgment is declined
- 4.Each party shall bear their respective costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Nairobi
- HCCC No. 1400 of 2004
- Jurisdiction invoked
- Article 163(4)(b) of the Constitution of Kenya 2010 - certification that an intended appeal involves matters of general public importance
Relief refused
#Stay of execution of the Court of Appeal judgment pending the intended appeal to the Supreme Court
The Court lacks jurisdiction to grant such stay post-judgment; it is functus officio
Costs
Each party shall bear their respective costs of the application.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
We accordingly find the application dated 8th August 2024 merited only to the extent that the intended appeal by Intercountries Importers and Exporters Limited is certified as raising matters of general public importance, and we accordingly grant it leave to appeal to the Supreme Court against the judgment of this Court (Okwengu, Mativo and Ngenye, JJA) delivered 12th July 2024. The prayer for stay of execution of the said judgment is however declined. Each party shall bear their respective costs of the application.
They are matters which, in our view, afiect or are likely to afiect a substantial number of members of the public and in particular those who obtain titles to land as a result of the exercise of statutory powers of sale by financial institutions.
We are in agreement with the above holdings, and find that we are functus officio in so far as applications seeking conservatory or preservatory orders in this appeal are concerned.
Issues in the judgment
#Mis-citation of the constitutional provision within the quoted Mwambeja Ranching passage: the Court of Appeal's jurisdiction rests on Article 164, and certification is under Article 163(4)(b), yet the quoted passage refers to 'Article 164 (4) of the Constitution', which does not exist.
Judgment text contains typographical errors ('afiect' for 'affect', 'virus' for 'ultra vires', 'judgement' inconsistently), typical of a certified copy; no substantive contradiction.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Intercountries Importers and Exporters Limited v Telposta Pension Scheme Registered Trustees & 5 others (Civil Appeal (Application) 293 of 2016) [2025] KECA 1367 (KLR)", Case Analysis (2025). Application dated 8th August 2024 (arising from the judgment in Civil Appeal delivered 12th July 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1367/eng@2025-07-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.