Nairobi — The High Court has upheld the auction of former Cabinet Secretary Raphael Tuju's Dari Business Park and declined to reverse its transfer, while granting a limited stay preserving Entim Sidai property on condition of a Sh50 million deposit within 30 days
Delivering the ruling on an application seeking stay of execution of a March 9, 2026 decision pending appeal, Justice Moses Ado said the dispute concerned whether the properties should be preserved while an intended appeal proceeds in a long-running commercial battle involving lenders and multiple defendants.
The court made a key finding at the outset of its determination, declining to interfere with a completed transfer of property already sold in a public auction, effectively allowing the transaction to stand and removing it from the scope of interim protection sought by the applicant.
Justice Ado found that one of the key properties, Dari Business Park (LRR No. 1055/165), had already been sold at a public auction and transferred to a third party, and was therefore not available for reversal through a stay order.
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"The evidence before this court demonstrated that one of the properties... was sold at a public auction, transferred to the 10th defendant and possession taken," the judge stated in a determination on Thursday.
On the legal effect of the completed sale, the court ruled that the applicant's rights over the property had been extinguished.
"In respect of that property, the applicant's equity of redemption was extinguished upon the fall of the hammer," the ruling read, adding that the remedy available at that stage lies in damages under Section 99 of the Land Act.
As a result, the court declined to grant any stay affecting the already transferred property, effectively clearing its auction and transfer from being reversed.
Conditional preservation
The judge noted the applicant's broader request to preserve the suit properties during the appeal process, but held that such protection could not extend to a transaction already completed and lawfully perfected.
However, the court took a different view on Entim Sidai (LRR No. 11320/3), which it found remained unsold and therefore still capable of preservation pending appeal.
"The position is different with regard to property that remains unsold... In respect of that property, there exists a real risk that absent preservatory orders, the respondents may proceed to realise the security before the intended appeal is heard," Justice Ado held.
The court warned that failure to protect the asset could undermine the appeal process.
"If that were to occur, the substance of the appeal would be irreversibly altered, potentially rendering the appeal negatory," he added.
No concrete plan
While granting the limited stay, Justice Ado faulted the applicant for failing to propose any security as required under procedural law.
"In the present case, the applicants did not place before court any specific or concrete proposal for security. There was no offer for deposit... no proposal for a bank guarantee," the judge noted.
While noting the omission would be consequential, the court exercised discretion to impose conditions in the interest of justice.
"The court retains residual discretion to fashion appropriate conditions for stay where the justice of the case demands," the judge stated.
Justice Ado ordered that the applicant deposit Sh50 million in an interest-earning joint account in the names of counsel for both parties within 30 days, warning that failure would cause the stay to lapse automatically.
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"The plaintiff within 30 days deposit security in the sum of 50 million in an interest-earning joint account... failing which the stay order shall automatically lapse," the ruling directed.
The court further ordered strict timelines for the appeal process.
"The plaintiff shall file and serve the record of appeal within 60 days... failing which the stay order shall stand discharged automatically."
The ruling comes against the backdrop of a protracted dispute over charged properties linked to debts exceeding $15 million, which has moved through multiple court levels.
Judiciary has previously described the suit as largely settled under the doctrine of res judicata.
