Intercountries Importers and Exporters Ltd v Teleposta Pension Scheme Registered Trustees & 5 others
The bottom line
#Supreme Court halts sale of disputed property pending appeal on public interest grounds.
What this practically means
#The Supreme Court of Kenya has stopped the sale of a property in Nairobi that is the subject of an ongoing appeal. The court found that the appeal raises serious legal questions about how titles acquired through public auctions under a bank’s power of sale should be treated. It also said that if the property were sold before the appeal is heard, the harm to the buyer would be irreversible. The court balanced the interests of all parties and the public, and decided that preserving the property until the case is resolved is the fairest outcome.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appeal is arguable and not frivolous
- 2.Whether the appeal would be rendered nugatory absent an order of stay
- 3.Whether public interest tilts in favour of granting a conservatory order
Key legal issues
#Whether the appeal is arguable
The appeal is arguable as it raises a bona fide point of law regarding the applicability of the rationes decidendi in Dina Management Limited case and Sehmi to the transfer or acquisition of title through a public auction conducted pursuant to a chargee's exercise of its statutory power of sale.
The court examined the grounds of the application and the supporting affidavit, noting that the applicant contends the appeal raises substantial issues of law affecting the banking and lending sector, particularly the statutory protection afforded to purchasers under a statutory power of sale pursuant to Section 99(3) of the Land Act. The court found that this issue is not frivolous and has substance, thus satisfying the first condition for grant of stay.
Whether the appeal would be rendered nugatory absent an order of stay
Absent the orders sought, further dealings with the suit property may occasion irreparable harm that may not be readily reversible or adequately compensated by an award of damages, should the appeal ultimately succeed.
The court considered that the 1st respondent may dispose of, charge, or otherwise alienate the suit property, thereby defeating the substratum of the appeal. The court also noted that the 6th respondent, against whom the applicant was directed to seek recourse, is under liquidation and lacks the financial capacity to compensate the applicant. Therefore, damages would not be an adequate remedy.
Whether public interest tilts in favour of granting a conservatory order
Balancing the loss and uncertainty which would be occasioned to the applicant as against the respondents and the public, public interest tilts in favour of granting a conservatory order of injunction to preserve the substratum of the appeal.
The court balanced the interests of the applicant, the respondents, and the public. It found that no prejudice would be occasioned to the respondents by the grant of such order, while the applicant would suffer irreparable harm if the order is not granted. The court also noted that the issues transcend the interests of the parties and bear significant implications for the banking sector.
Legal principles established
#- A stay of execution now requires a third condition: public interest, under the Constitution of Kenya 2010.
- An arguable appeal is one that has substance and is not frivolous, assessed at a prima facie level.
- The nugatory aspect asks whether the harm is reversible or can be adequately compensated by damages.
- A conservatory order can be granted to preserve the subject matter of an appeal pending hearing.
- Public interest tilts towards granting an order where the issues affect the banking sector and beyond.
- Costs of an interim application will follow the outcome of the final appeal.
Court orders
#- 1.A conservatory order of injunction is hereby issued restraining the 1st respondent or its agents or assignees from selling, charging or otherwise disposing of the suit property, pending the hearing and determination of the appeal.
- 2.Costs of this application shall abide the outcome of the appeal.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal at Nairobi
- Civil Appeal No. 293 of 2016
- Jurisdiction invoked
- Section 23A of the Supreme Court Act, as read with Rule 3(5) of the Supreme Court Rules
Relief refused
#Prayer for stay of execution of the Judgment of the Court of Appeal dated 12th July 2024 in Civil Appeal No. 293 of 2016
The impugned judgment has already been executed and the suit property restored to the 1st respondent, as evidenced by the Certificate of Lease dated 22nd September 2025 annexed to the 1st respondent's Replying Affidavit.
Costs
Costs of this application shall abide the outcome of the appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The appeal is arguable; it raises a bona fide point of law regarding the applicability of the rationes decidendi in Dina Management Limited case and Sehmi [supra] to the transfer or acquisition of title through a public auction conducted pursuant to a chargee's exercise of its statutory power of sale.
Absent the orders sought, further dealings with the suit property may occasion irreparable harm that may not be readily reversible or adequately compensated by an award of damages, should the appeal ultimately succeed.
A conservatory order of injunction is hereby issued restraining the 1st respondent or its agents or assignees from selling, charging or otherwise disposing of the suit property, pending the hearing and determination of the appeal.
Costs of this application shall abide the outcome of the appeal.
Key timeline
#Practical implications
#New third condition for stay
When arguing for a stay of execution or conservatory order, you must now explicitly address public interest as a separate condition, not just arguability and nugatory effect. Frame your submissions around how the case affects the public, especially if it involves land law, banking, or statutory interpretation. Cite the Supreme Court's reasoning in this case to strengthen your application.
Risk when buying at auction
If you buy property through a bank's statutory power of sale, your title may be challenged even years later. This case shows that the Supreme Court can stop further dealings with the property while an appeal is heard. Banks and buyers should ensure all steps of the auction and transfer comply strictly with the Land Act, and consider that public interest arguments may delay finality of ownership.
Property bought at auction may be at risk
If you purchase land at a public auction conducted by a bank, and the original owner later challenges the sale, the case can go all the way to the Supreme Court. Even after the Court of Appeal rules against you, you can ask the Supreme Court to stop the property from being resold while your appeal is heard. This buys time but does not guarantee you will keep the land.
Frequently asked questions
#What is a conservatory order in Kenya?+
A conservatory order is a court order that stops a party from taking any action that could change the status of a property or matter until a case is fully decided. In this case, the Supreme Court used it to prevent Teleposta Pension Fund from selling or charging the disputed land while the appeal is pending.
Can a buyer at a public auction lose the property even after paying the full price in Kenya?+
Yes, if the sale is later challenged in court and found to be irregular. In this case, the Court of Appeal ruled that the auction was a nullity. The Supreme Court then allowed the buyer to appeal and stopped further dealings. The final outcome will determine if the buyer keeps the land.
What does public interest mean in a Kenyan court stay application?+
Public interest means the court looks at whether granting or denying a stay affects the broader community, not just the parties. Here, the Supreme Court considered that the legal issues impact the entire banking and lending sector in Kenya, so it was in the public interest to preserve the property until the appeal is heard.
How long does a Supreme Court appeal take in Kenya?+
There is no fixed timeline, but interim applications like this one are usually decided quickly. The full appeal may take months or over a year. In this case, the Supreme Court issued the conservatory order in 2026, with the appeal still pending. The order will last until the appeal is finally determined.
Later judgments citing this (11)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Nthenge v Mwasaru & 3 others (Sued in Their Capacities as Office Bearers of Ushirika Boma Welfare Society); Mwasaru & 3 others (Sued in Their Capacities as Office Bearers of Ushirika Boma Welfare Society) (Plaintiff to the Counterclaim); Nthenge & 6 others (Defendant to the Counterclaim) (Environment & Land Case 148 of 2018) [2025] KEELC 3539 (KLR)[2025] KEELC 3539 (KLR)6 May 2025applied
- Ogando v Kenya Ports Authority Pension Scheme (Defined Benefits) & another (Environment & Land Case 73 of 2021) [2024] KEELC 7041 (KLR)[2024] KEELC 7041 (KLR)15 Oct 2024
- Kenya Union of Commercial Food & Allied Workers & 13 others v Tatu City & another; Kenya Plantation and Agricultural Workers’ Union (Interested Party) (Employment and Labour Relations Cause E6452 of 2020) [2024] KEELRC 2388 (KLR)[2024] KEELRC 2388 (KLR)27 Sept 2024followed
- Mulani v Mulani; Safaricom Investment Co-operative Society Limited (Interested Party) (Environment & Land Case 181 of 2012) [2024] KEELC 4001 (KLR)[2024] KEELC 4001 (KLR)21 May 2024
- Guzzini & another v Tinga & 7 others (Civil Appeal E047 of 2021) [2024] KECA 493 (KLR)[2024] KECA 493 (KLR)26 Apr 2024
- Muli v Waruingi & another (Environment & Land Case E026 of 2020) [2024] KEELC 409 (KLR)[2024] KEELC 409 (KLR)31 Jan 2024
- Cheruiyot v Korir (Civil Appeal 131 of 2017) [2021] KECA 222 (KLR)[2021] KECA 222 (KLR)5 Nov 2021followed
- Samuel Njogu Kamotho & 43 others v Kenya African National Union (KANU) [2021] KEELC 3228 (KLR)[2021] KEELC 3228 (KLR)27 May 2021
- Kelvin Mutua & 197 others v Athi Water Services Board [2021] KEELC 4536 (KLR)[2021] KEELC 4536 (KLR)29 Jan 2021applied
- Jeremiah Mbithi & 13 others v Athi Water Service Board [2021] KEELC 4530 (KLR)[2021] KEELC 4530 (KLR)29 Jan 2021
- Banking, Insurance and Finance Union (Kenya) v Bank of Baroda (K) Limited [2019] KEELRC 1087 (KLR)[2019] KEELRC 1087 (KLR)10 Jul 2019
Cite this brief
#Cite this brief
Caselaw, "Intercountries Importers and Exporters Ltd v Teleposta Pension Scheme Registered Trustees & 5 others", Case Analysis (2026). Petition (Application) E039 of 2025. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2026/49/eng@2026-07-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.