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ELCDismissedNot stated in judgment (Application dated 28/11/2023)· [2025] KEELC 3586 (KLR)

Teleposta Pension Scheme v Liyai & 2 others (Environment & Land Case 239 of 2017) [2025] KEELC 3586 (KLR)

Environment and Land Court
6 May 2025
2,652 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Thika (Mogeni J) delivered on 6 May 2025 on the 1st Defendant's Notice of Motion dated 28 November 2023 seeking a stay of execution of the judgment and decree of 25 September 2023 pending an intended appeal to the Court of Appeal. The underlying judgment had declared the allocation and issuance of title to the 1st Defendant fraudulent, illegal and null and void, ordered cancellation of her title, issuance of a new title to the Plaintiff (a pension scheme for former employees of KPTC, PCK and Telkom Kenya), vacant possession, and a permanent injunction. The Applicant relied on her filed Notice of Appeal and a draft Memorandum of Appeal, asserting she was a bona fide purchaser and would suffer irreparable loss rendering the appeal nugatory. The Respondent opposed, contending there was no filed appeal, no demonstrated substantial loss, undue delay, and no offer of security, and that it had been kept out of the suit property for over twenty years. The court applied Order 42 rule 6 of the Civil Procedure Rules and the jurisprudence on stay. It rejected the objection that no appeal was pending, holding that a notice of appeal lodged in the registry suffices. However, the Applicant had never lived on the suit property, acquired title through questionable processes, demonstrated no substantial loss beyond fear of execution, and offered no security such as surrender of the title deeds. The application was dismissed with costs to the Plaintiff/Respondent.

Key legal issues

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01

Whether the requirements of Order 42 rule 6 for stay of execution pending appeal were met

Holding

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

Reasoning

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.

p. 5
02

Whether a pending appeal is required for a stay under Order 42 rule 6, given only a Notice of Appeal was filed

Holding

Objection that no appeal was pending rejected; a notice of appeal lodged in the registry suffices

Reasoning

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.

p. 4
03

Whether the stay application was brought without undue delay

Holding

Delay was not decisive; the application failed principally on substantial loss and security

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 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. 2.Costs awarded to the Plaintiff/Respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 rule 6(1) and (2)
  • Civil Procedure ActSections 1A, 1B & 3A

Cases cited (18)

  • Evalyne Chepkirui v Geofrey Turere Kusero & Another
    Environment and Land Appeal E038 of 2023
  • Naftali Irungu Ndiritu v Paul Njoroge Gichiri & 8 Others
    Environment and Land Appeal E003 of 2024
  • Congress Rental South Africa v Kenyatta International Convention Centre, Cooperative Bank Kenya Ltd & Another (Garnishee)
    [2019] eKLR
  • Silverstein v Chesoni
    [2002] eKLR
  • Machira T/A Machira & Co. Advocates v East African Standard
    [2002] eKLR
  • Kenya Shell Limited v Benjamin Karuga Igbiru
    [1986] eKLR
  • Equity Bank Ltd v Taiga Adams Company Ltd
    [2006] eKLR
  • Antaine Ndaiye v African Virtual University
    [2015] eKLR
  • Mohammed Salim T/a Choice Butchery Nasserpuria Memon Jamal
    [2013] eKLR
  • Halai & Another V Thorton & Turpin [1963] Ltd
    [1990] KLR 365
  • Hassan Guyo Wakao v Straman E A Ltd
    [2013] eKLR
  • Otieno Ragot and Co Advocates v NBK Ltd
    [2021] eKLR
  • James Wangalwa & another v Agnes Naliaka Cheseto
    [2012] eKLR
  • Jenifier Akinyi Osodo v Boniface Okumu Osodo & 3 Others
    [2021] eKLR
  • Stanley Kangethe Kinyanjui v Tony Ketter & Others
    [2013] eKLR
  • WW v EKW
    [2019] eKLR
  • Butt v Rent Restrictions Tribunal
    [1982] KLR 417
  • Thugi River Estates Ltd & Another v NBK and 2 Others
    [2008] eKLR
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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.