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ELCPartially AllowedNot stated in the judgment (original suit number not reproduced)· [2025] KEELC 6417 (KLR)

Teleposta Pension Scheme Registered Trustees v Wataari & 11 others (Environment and Land Case Civil Suit E134 of 2021) [2025] KEELC 6417 (KLR)

Environment and Land Court (High Court)
23 January 2025
1,680 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court reversed its own judgment after injunctions were lifted, giving apartment occupants 180 days to vacate.

What this practically means

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Executive summary

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The plaintiff applied by Notice of Motion dated 12th October 2023 for review of this court's judgment of 6th July 2023 dismissing its suit. The dismissal had rested on injunctive orders issued by the Court of Appeal in Civil Appeal No 390 of 2019 (Bernard Kariuki Wataari & Others v Registered Trustees of Teleposta Pension Scheme) restraining the plaintiff from interfering with the defendants' possession of the suit property. On 6th October 2023 the Court of Appeal dismissed the defendants' appeal and vacated the injunctive orders, prompting the review application. The defendants opposed, arguing the plaintiff knew of the pending appeal all along, and further that they had filed an appeal in the Supreme Court which vacant possession would render nugatory. Applying Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, and the principles in Mzee Wanjie & 93 Others v A.K. Sakwa, the court found the Court of Appeal judgment constituted new and important matter that could not have been produced before 6th July 2023, and that the application, filed six days later, was brought without unreasonable delay. Since the earlier dismissal turned on the now-discharged injunctions, there was sufficient cause for review. The court found the plaintiff entitled to vacant possession, granted the defendants 180 days to vacate Apartments 3B, 5A, 7A, 9A, 1B, 2B, 5B, 6B, 7B, 9B and 4A, failing which eviction would issue, with enforcement by the OCS Kileleshwa Police Station. Because the defendants had succeeded in the earlier judgment now reviewed, each party was ordered to bear their own costs.

Key legal issues

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Whether the application for review met the threshold under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules

Holding

The application met the threshold: the Court of Appeal judgment of 6th October 2023 vacating the injunctive orders constituted new and important matter discovered after the earlier judgment, filed without unreasonable delay, and amounted to sufficient cause for review.

Reasoning

The court applied the principles in Mzee Wanjie & 93 Others v A.K. Sakwa on review based on new and important matters. The Court of Appeal decision of 6th October 2023 post-dated this court's judgment of 6th July 2023 and could not have been produced earlier. The application was filed six days later, satisfying the 'without unreasonable delay' requirement. Since the earlier dismissal rested largely on the now-discharged injunctions, sufficient cause existed to reconsider and allow the suit, entitling the plaintiff to vacant possession with 180 days for humane relocation.

p. 3

Legal principles established

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  • An appeal does not amount to an automatic stay of execution unless a formal stay is granted
  • Discharge of injunctive orders on which a prior judgment was premised constitutes sufficient cause for review, where the discharge could not have been produced at the time of the earlier decision

Court orders

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  1. 1.Review of the judgment of 6th July 2023 dismissing the plaintiff's suit is allowed and judgment entered for the plaintiff against the defendants jointly and severally
  2. 2.Defendants ordered to give vacant possession and/or vacate Apartment 3B, 5A, 7A, 9A, 1B, 2B, 5B, 6B, 7B, 9B and 4A within 180 days, in default of which an order for eviction is to issue
  3. 3.The Officer Commanding Station - Kileleshwa Police Station is to enforce the order
  4. 4.Each party to bear their own costs

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure RulesOrder 45 Rule 1(a) & (b)

Cases cited (4)

  • Republic Vs Public Administrative Review Board & 2 others (2018) eKLR
    (2018) eKLR
  • Republic Vs Advocates Disciplinary Tribunal Ex parte Apollo Mboya (2019) High Court of Kenya Nairobi Judicial Review Division Misc Application no 317 of 2018
    Misc Application no 317 of 2018
  • Mzee Wanjie & 93 others Vs A.K. Sakwa & 3 others
    [1982-88] 1 KAR 465
  • Bernard Kariuki Wataari & Others Vs Registered trustees of Teleposta Pension Scheme (Civil Appeal No 390 of 2019)
    Civil Appeal No 390 of 2019
Jurisdiction invoked
Section 80 of the Civil Procedure Act as read with Order 45 Rule 1 of the Civil Procedure Rules

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 Registered Trustees v Wataari & 11 others (Environment and Land Case Civil Suit E134 of 2021) [2025] KEELC 6417 (KLR)", Case Analysis (2025). Not stated in the judgment (original suit number not reproduced). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6417/eng@2025-01-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.