Teleposta Pension Scheme Registered Trustees v Opiyo & 123 others
The bottom line
#Kenya's Environment and Land Court struck out 124 defendants' defence and gave a landlord immediate judgment because their case had already been decided and lost.
What this practically means
#Executive summary
#Key legal issues
#Whether the Defence should be struck out under Order 2 Rule 15(1)(a) as disclosing no reasonable defence in law
The Defence was struck out because it rehashed matters already adjudicated in ELC 629 of 2016 and raised no triable issue.
The court compared the Defence averments with the judgment in ELC 629 of 2016, which found no evidence authorising the Defendants' continued stay or entitlement to the suit property. The Defence merely restated the claims dismissed in that suit, attempting to have the court reconsider issues already decided by a competent court. Guided by D.T. Dobie and Kivanga Estates, the court found the Defence hopeless and incurable.
Whether the pendency of an appeal against the ELC 629 of 2016 judgment deprives that judgment of finality
No; a decision remains final until overturned on appeal, and the remedy is stay pending appeal.
The Defendants argued that the pending appeal (Civil Appeal No. E276 of 2022) deprived the judgment in ELC 629 of 2016 of finality so it could not ground summary judgment. The court rejected this, holding that finality persists until reversal by a superior court, which is why the law provides for stay pending appeal. No stay was shown to be in place.
Whether summary judgment under Order 36 Rule 1 was merited
Summary judgment as prayed in the Plaint was entered, the claim being for recovery of land.
Having found no reasonable defence, and characterising the claim as one for recovery of houses by a landlord from tenants whose terms had expired or been determined by notice to quit, the court found the summary judgment prayer merited and entered judgment as prayed in the Plaint, including vacant possession and eviction relief.
Legal principles established
#- A pending appeal does not deprive a judgment of its finality; a decision remains final until overturned by a superior court, and the law provides for stay pending appeal.
- A triable issue need not be one the defendant would ultimately succeed on; it need only be bona fide.
Court orders
#- 1.The Defendants' Defence be and is hereby struck out
- 2.Summary Judgement as prayed in the Plaint be and is hereby entered
- 3.Costs of the application to be borne by Defendants
- Jurisdiction invoked
- Environment and Land Court jurisdiction under the Environment and Land Court Act; application brought under Sections 1A and 1B of the Civil Procedure Act and Orders 2 Rule 15(1)(a), 36 Rule 1 and 51 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Teleposta Pension Scheme Registered Trustees v Opiyo & 123 others", Case Analysis (2023). Environment & Land Case E013 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18700/eng@2023-07-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.