Stephen Mwaura Njuguna v Dougals Kamau Ngotho & another [2012] KECA 98 (KLR)

The appellant charged the suit properties to Barclays Bank, which exercised its statutory power of sale in 1996; the appellant never challenged that sale, never sought indemnity beyond a statement in a defence, never joined the Bank or the first purchaser, and filed no counterclaim. A court cannot make findings against strangers to the suit, so the respondent's registered title stood. The court, as a first appellate court, re-evaluated the evidence afresh and agreed with the trial judge.

The court rejected the appellant's contention that the respondent's suit was barred merely because it was filed while H.C.C.C. No. 280 of 1996 was alive. The earlier suit had been instituted by five persons none of whom were parties to the respondent's suit, its cause of action was different, and its dismissal for want of prosecution meant it had not been heard and finalised by any competent court, satisfying none of the elements of res judicata.

The chamber summons sought to restrain execution of the judgment of 21st September 2004 until determination of the intended appeal. Since the main appeal had by then been heard and dismissed and the eviction orders confirmed, granting the appeal would be an act in futility. The court also laid down the legal principle that where judgment orders are positive, the law provides for stay of execution, not injunctive relief against a judgment of a competent court.

The application before Kimaru J. sought to declare void and set aside eviction orders issued by Muga Apondi J. and to reinstate the appellant. The Court of Appeal held that Kimaru J. was 'perfectly on the spot' in refusing, since judges of the High Court are of equal and concurrent jurisdiction and one cannot sit in appeal over, or set aside the orders of, another; such relief lies only on appeal. The application was also overtaken by events as the main appeal had been finalised.