Telposta Pension Scheme Registered Trustees & Another v Total Security Surveillance Limited & Others
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the application for stay was filed without unreasonable delay
A delay of thirty-eight (38) days between the Tribunal's ruling of 19/12/2023 and the filing of the application was not inordinate
The court measured the interval between the Tribunal ruling delivered on 19/12/2023 and the application filed on 26/01/2024, holding that a period of about thirty-eight days cannot be said to have been inordinate. The delay limb of Order 42 Rule 6(2) was therefore satisfied.
Whether the Applicant demonstrated substantial loss
The Applicant failed to demonstrate the substantial loss that would result if stay was denied
Relying on Machira T/A Machira & Co. Advocates vs East Africa Standard, the court held substantial loss is a factual issue that must be raised in the supporting affidavit and supported by evidence. As the 1st Respondent's ownership judgment in Nairobi ELC Suit No. 1400 of 2014 had not been overturned, the Applicant failed to discharge its burden of proving substantial loss.
Whether the Applicant furnished security for the due performance of the decree
The Applicant offered no security, a mandatory condition, and the application therefore failed
Citing Aron C. Sharma vs Ashana Raikundalia and Equity Bank Ltd vs Taiga Adams Company Ltd, the court held that offering security is a mandatory tenet; not one or some but all conditions must be met. The Applicant offered no security or undertaking to pay if ordered, so the third mandatory condition was unfulfilled.
Whether the Court could stay further proceedings of the Tribunal
The request for stay of further Tribunal proceedings was res judicata, having been heard and finally determined by the Tribunal itself
The court found that the issue of stay of proceedings had been adjudicated upon by the Tribunal and later reviewed/set aside by its ruling of 19/12/2023, which is the subject of the appeal. The Court could not entertain the same issue afresh, deeming it res judicata.
Legal principles established
#- Three mandatory conditions must be satisfied before stay pending appeal is granted: substantial loss, no unreasonable delay, and security
- Substantial loss must be specifically and in detail raised and supported by evidence, not merely asserted
- The burden of proving substantial loss lies on the applicant for stay
Court orders
#- 1.The Notice of Motion dated 25/01/2024 is dismissed with costs
- 2.Costs awarded to the 1st Respondent
- On appeal from
- Business Premises Rent Tribunal (Chairman)
- BPRT Cause No. 902 of 2016 (consolidated with BPRT No. 903 of 2016 and BPRT No. 901 of 2023)
- Jurisdiction invoked
- Order 42 Rule 6(1) & Order 51 Rule 1 of the Civil Procedure Rules, 2010; Sections 1A, 1B, 3A & 63(e) of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Telposta Pension Scheme Registered Trustees & Another v Total Security Surveillance Limited & Others", Case Analysis (2024). Judicial Review / Appeal arising from BPRT Cause No. 902 of 2016 (consolidated with BPRT No. 903 of 2016 and BPRT No. 901 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1182/eng@2024-03-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.