Quandt v Shepard & 3 others (Civil Appeal E173 of 2021) [2026] KECA 1493 (KLR)
The bottom line
#The appeal court fixed one legal error but still refused to pause the judgment's enforcement, leaving each side to pay its own legal bills.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appellant's application for stay of execution was res judicata.
- 2.Whether the learned Judge properly exercised his discretion in finding that the appellant had failed to satisfy the conditions for grant of stay under Order 42 Rule 6 of the Civil Procedure Rules.
- 3.Who should bear the costs of the appeal.
Key legal issues
#Whether the appellant's application for stay of execution pending appeal was res judicata.
No. The learned Judge misapprehended the law: Order 42 rule 6(1) confers on the appellate court an independent jurisdiction to consider a stay application afresh, whether or not a similar application was granted or refused by the court appealed from. The res judicata finding was set aside.
Section 7 of the Civil Procedure Act bars re-litigation of matters already determined between the same parties, but Order 42 rule 6(1) expressly permits the court to which an appeal is preferred to consider a stay application whether it was granted or refused below. The provision was deliberately crafted to avoid the technicality of res judicata and mirrors the independent original discretion this Court exercises under rule 5(2)(b) of the Court of Appeal Rules, where the appellate court applies its mind de novo as a court of first instance. Requiring a prior appeal against refusal would occasion unnecessary delay contrary to Article 159(2)(b) of the Constitution and the overriding objective.
Whether the learned Judge properly exercised his discretion in finding that the appellant failed to satisfy the conditions for grant of stay under Order 42 rule 6(2).
Yes. The Judge considered all three conditions and found against the appellant on each: substantial loss was a bare assertion without evidence, the application was filed about six months after the judgment without any explanation, and no concrete security was demonstrated. The dismissal of the stay application was affirmed.
Order 42 rule 6(2) requires demonstration of substantial loss, application without unreasonable delay, and provision of security. The record showed the appellant merely asserted he would suffer substantial loss without evidence; the motion was filed on 17th September 2018, some six months after the magistrate's judgment of 16th March 2018, with no satisfactory explanation for the delay; and although he claimed the remainder of the estate was sufficient security, he did not show its size. Applying the settled principles in Mbogo v Shah and Chemwolo, the Court found no misdirection in law, no irrelevant considerations, no ignored relevant considerations, and nothing plainly wrong.
Who should bear the costs of the appeal.
Each party to bear their own costs, the appeal arising from a succession matter and the appellant's partial success amounting to a pyrrhic victory.
Although the appeal partially succeeded, the only vindicated ground — the erroneous res judicata finding — did not alter the outcome, since the dismissal of the stay application rested on independent grounds the appellant failed on. The Court regarded the appellant's win as a pyrrhic victory and, in a succession matter, considered the just order was for each side to meet its own costs of the appeal.
Legal principles established
#- An application for stay of execution pending appeal is not barred by res judicata: under Order 42 rule 6(1) the appellate court has an independent jurisdiction to consider the application afresh whether or not a similar application was granted or refused by the court appealed from.
- An appellant is not required to appeal against the lower court's refusal of a stay before filing a fresh application for stay in the appellate court.
- Grant of a stay under Order 42 rule 6(2) requires demonstration of substantial loss, institution of the application without unreasonable delay, and provision of security.
- An appellate court will not interfere with the exercise of discretion by a lower court absent misdirection in law, consideration of irrelevant matters, failure to consider relevant matters, or a plainly wrong decision.
Court orders
#- 1.The appeal allowed in part: the High Court's finding that the appellant's application for stay of execution was res judicata is set aside.
- 2.The limb of the appeal challenging the learned Judge's determination that an order of stay was not merited fails and is dismissed; the dismissal of the stay application is upheld.
- 3.Each party to meet their own costs of the appeal.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Eldoret
- Eldoret HCCA No. 35 of 2018
- Jurisdiction invoked
- First appeal to the Court of Appeal; the judgment does not expressly cite the provision conferring appellate jurisdiction. The appeal was argued on Order 42 rule 6 of the Civil Procedure Rules, with the Court also invoking section 7 of the Civil Procedure Act and Article 159(2)(b) of the Constitution.
Relief refused
#Order of stay of execution of the magistrate's decree pending appeal
The appellant failed to satisfy any of the three conditions in Order 42 rule 6(2): substantial loss was a bare assertion unsupported by evidence, the application was brought about six months after the judgment without explanation, and no concrete security was offered.
Wholesale setting aside of the High Court ruling and costs of the appeal against the respondents (as respectively sought by the appellant and the 3rd and 4th respondents)
The appeal succeeded only on the erroneous res judicata finding; the substantive dismissal of the stay application stood on independent grounds, and given the appellant's pyrrhic partial success in a succession matter each party was directed to bear its own costs.
Costs
Each party to meet their own costs of the appeal; the parties were directed to bear their own costs, the matter being a succession matter in which the appellant's partial success was a pyrrhic victory.
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.
Considering our findings hereinabove, it follows that this appeal partially succeeds only to the extent that the learned Judge erred in finding that the appellant’s application was res judicata. However, this finding does not upset the learned Judge’s determination that an order of stay was not merited. Consequently, this aspect of the appeal fails and is dismissed.
In the circumstances, the appropriate order on costs is to direct the parties to meet their own costs of the appeal, which we hereby do.
The plain and unambiguous language of this provision gives the appellate court independent jurisdiction to entertain an application for stay of execution, irrespective of whether a similar application was granted or refused by the court whose decision is the subject of the appeal or intended appeal.
The provision was deliberately crafted to avoid the technicality of res judicata and to ensure that a party who has lodged an appeal has a second chance to seek interim relief from the appellate court.
Order 42 Rule 6 does not require an appellant to first appeal against the lower court's refusal of a stay. To the contrary, it expressly permits the High Court to consider the application anew.
Requiring a party to appeal against the refusal of an order of stay of execution before filing a fresh application would lead to unnecessary delay, contrary to the overriding objective of the Civil Procedure Act and the constitutional imperative of expeditious justice under Article 159(2)(b) of the Constitution.
We are therefore satisfied that the learned Judge correctly exercised his discretion in dismissing the appellant's application for stay of execution of the magistrate’s judgment.
The rationale behind res judicata is based on the public interest that there should be an end to litigation coupled with the interest to protect a party from facing repetitive litigation over the same matter.
Issues in the judgment
#Internal inconsistency: the Court describes the six-month delay as running from a decision 'delivered by the High Court', but the decision sought to be stayed was the Chief Magistrate's judgment of 16th March 2018; the High Court ruling of 9th October 2019 post-dated the application filed on 17th September 2018.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Quandt v Shepard & 3 others (Civil Appeal E173 of 2021) [2026] KECA 1493 (KLR)", Case Analysis (2026). Not stated in the judgment (appeal against ruling in Eldoret HCCA No. 35 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1493/eng@2026-07-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.