Portsmouth Holdings Limited v Kenya Railways Corporation (Environment and Land Case 7 of 2021) [2025] KEELC 7169 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Conditions for stay of execution pending appeal
Substantial loss is the cornerstone; it must be shown with tangible and cogent evidence, and mere execution is not substantial loss
The court restated that stay under Order 42 Rule 6 requires delay, substantial loss and security, plus sufficient cause to keep a successful party from its judgment. The applicant was silent on what substantial loss it would suffer and did not specify which part of the decree it wanted stayed, so only a partial stay conditioned on security could issue.
What constitutes reasonable delay
No fixed maximum or minimum delay; it depends on circumstances
The court noted the law sets no maximum or minimum period of delay; even one day may be unreasonable depending on the circumstances. This followed Jaber Mohsen Ali v Priscillah Boit. The application in this case was filed shortly after the judgment and delay was not the decisive factor.
Nature of security for due performance
Security must be offered by the applicant, be of good faith and commensurate with the decree; size of the decretal sum alone is insufficient
Relying on Focin Motorcycle v Ann Wambui Wangui and Kenya Shell v Kibiru, the court held an applicant must offer security rather than leave its nature to the court. The applicant did not allege the respondent could not refund the decretal sum, so only conditional stay of the special damages was granted, tied to depositing half the decretal sum.
Legal principles established
#- The four conditions under Order 42 Rule 6 must be met conjunctively
- Security must be offered by the applicant, not left to the court to determine, and must be commensurate with the decree
Court orders
#- 1.Stay of execution limited to payment of the special damages
- 2.Applicant to deposit half of the decretal sum in a joint interest-earning account in the names of the two advocates within 45 days, failing which the stay orders shall lapse
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Portsmouth Holdings Limited v Kenya Railways Corporation (Environment and Land Case 7 of 2021) [2025] KEELC 7169 (KLR)", Case Analysis (2025). ELC Case (Kitale), judgment delivered 25/6/2025; application dated 11/7/2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7169/eng@2025-10-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.