Teleposta Pension Scheme v Liyai & 2 others (Environment & Land Case 239 of 2017) [2025] KEELC 3586 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the requirements of Order 42 rule 6 for stay of execution pending appeal were met
Not met: no substantial loss demonstrated, no security offered, and the applicant's rights were not shown to outweigh the decree holder's right to enjoy the fruits of judgment
The court restated the Order 42 rule 6 hurdles: substantial loss, timeous filing and offer of security, plus the nugatory-appeal test. The Applicant never lived on the suit property and acquired title through questionable processes; she offered no security such as surrender of title deeds, and failed to show why her right of appeal should pend the decree holders' right to realize the judgment.
Whether a pending appeal is required for a stay under Order 42 rule 6, given only a Notice of Appeal was filed
Objection that no appeal was pending rejected; a notice of appeal lodged in the registry suffices
The Respondent argued there was no filed appeal, only a Notice of Appeal, so nothing warranted a stay. Relying on Otieno Ragot and Co Advocates v NBK Ltd, the court held an appeal is deemed filed once a notice thereof is lodged in the appropriate registry, and found that ground of objection unmeritorious. The application nonetheless failed on the substantive stay conditions.
Whether the stay application was brought without undue delay
Delay was not decisive; the application failed principally on substantial loss and security
Judgment was delivered on 25/09/2023, a Notice of Appeal was filed on 6/10/2023 and typed proceedings requested on 28/09/2023; the application was filed 28/11/2023. The court did not found dismissal on delay but on the absence of demonstrated substantial loss and the failure to offer security, applying the principle that failure to prove one of the triple principles dislodges the others.
Legal principles established
#- An appeal is deemed to have been filed once a notice of appeal has been lodged in the appropriate registry
- The conditions for stay under Order 42 rule 6 are substantial loss, timely filing, and security, and they go hand in hand - failure to prove one dislodges the others
- A party must offer security itself; it is not for the Court to suggest security to a party
Court orders
#- 1.The 1st Defendant's Notice of Motion dated 28/11/2023 seeking stay of execution of the Judgment/Decree of 25/09/2023 is dismissed
- 2.Costs awarded to the Plaintiff/Respondent
- Jurisdiction invoked
- Order 42 rule 6(1) and (2) of the Civil Procedure Rules; Sections 1A, 1B & 3A of the Civil Procedure Act (stay of execution pending appeal to the Court of Appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Teleposta Pension Scheme v Liyai & 2 others (Environment & Land Case 239 of 2017) [2025] KEELC 3586 (KLR)", Case Analysis (2025). Not stated in judgment (Application dated 28/11/2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3586/eng@2025-05-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.