Loftyles Fonds Limited v Total Kenya Plc (Environment and Land Case E170 of 2023) [2026] KEELC 4988 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Defendant satisfied the conditions for stay of execution pending appeal
Stay declined: the Defendant failed to prove substantial loss, the only limb it could not satisfy
The Court set out the three conjunctive conditions in Order 42 Rule 6(2). Delay of about 14 days was not inordinate, and the Defendant offered a bank guarantee as security. However, the Plaintiff's Replying Affidavit listed assets worth about Kshs. 974,000,000 with title documents, searches, valuation reports and logbooks, discharging the shifted evidential burden of showing capacity to refund. The Defendant offered only generalized assertions of substantial loss and failed to show the Plaintiff could not refund the decretal sum.
Whether the court could review its judgment to address Prayer (6) (interest) inadvertently omitted
Yes — the omission was an accidental slip; the court granted interest on prayer 2 at the contractual rate of 13.48% per annum, but declined interest on costs
The judgment had allowed the Plaintiff's suit as prayed, evidencing an intention to grant Prayer 6; its omission was a simple inadvertent slip correctable under Section 99 and Order 45. Functus officio did not apply since the court had never pronounced itself on the prayer. Applying Section 26 and the contractual penalty-interest clause in the Deed of Variation, the court fixed interest on the prayer 2 amount at 13.48% (the prevailing Absa/Barclays lending rate) from when rent fell due till payment in full, but declined interest on costs absent reasons to depart from the normal practice.
Whether the date at paragraph 52 of the judgment (30/6/2025) was a slip correctable to 30/6/2020
Yes — Recital C of the Deed of Variation provided a five-year term from 1/7/2015, ending 30/6/2020; paragraph 52 amended accordingly
The Court found the recorded date was an error apparent on the face of the record. Recital C of the Deed of Variation stipulated a five-year period commencing 1/7/2015, which necessarily ended on 30/6/2020, with the lease itself governing the subsequent term from 1/7/2020 to 30/6/2025. The correction was clerical, did not alter the substance of the judgment, and fell squarely within the slip rule.
Legal principles established
#- The conditions for stay of execution pending appeal under Order 42 Rule 6(2) — substantial loss, absence of unreasonable delay, and furnishing of security — must be met conjunctively, and the burden of proving substantial loss lies on the applicant
- Once an applicant for stay raises a reasonable fear that a respondent cannot refund the decretal sum, the evidential burden shifts to the respondent to show its resources
- The slip rule under Section 99 of the Civil Procedure Act permits correction only where the court gives effect to its intention at the time of judgment or corrects an accidental slip or omission; it does not permit the court to sit on appeal over its own decision or alter the substance of the judgment
- Functus officio does not arise where the court never pronounced itself on the issue in question
- A trial court has wide discretion under Section 26 of the Civil Procedure Act to award interest from the date of judgment to payment, but pre-suit interest depends on contract, mercantile usage, statute or implied agreement
Court orders
#- 1.The Defendant's application dated 4/3/2026 seeking stay of execution of the Judgment delivered on 19/2/2026 is dismissed
- 2.The Plaintiff's application dated 10/4/2026 is partially allowed: the review of the judgment to address Prayer (6) of the Plaint is allowed only in terms of interest on prayer 2 of the Plaint
- 3.Paragraph 52 of the Judgment is corrected to read that the Lease was varied only to the extent of determining rent for the period between 1/7/2015 and 30/6/2020 (replacing '2025' with '2020')
- 4.Prayer f is added: the amount granted at Prayer 2 of the Plaint shall attract interest at 13.48% per annum from the date the rent fell due till payment in full
- 5.Each party shall bear its own costs
- Jurisdiction invoked
- Sections 1A, 1B, 3A, 63, 80 and 99 of the Civil Procedure Act; Order 42 Rule 6, Order 45 and Order 51 Rule 1 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Loftyles Fonds Limited v Total Kenya Plc (Environment and Land Case E170 of 2023) [2026] KEELC 4988 (KLR)", Case Analysis (2026). ELC.E170.2023-NBI. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4988/eng@2026-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.