Kibui v Lawkin Company Ltd & 3 others

The Applicants’ Case 2. The deponent averred that, in a ruling delivered on 7th June 2025, the Court granted an interim injunction to preserve the Appellant’s possession, occupation and use of the suit premises pending the hearing and determination of the appeal. 3. He further averred that the Court did not, in the said ruling, pronounce itself on the Appellant's prayer for an order staying proceedings in the lower Court. 4. He argued that unless the proceedings are stayed, the trial Court would hear and determine the suit before the subject appeal is heard and determined, thereby rendering the appeal nugatory. The 1St And 2Nd Respondents Case 5. The Respondents led a replying adavit, sworn by Purity Wanjiru Muthee on 6th August 2026 in opposition to the application. 6. The deponent contends that the application is incompetent, misconceived and an abuse of the court process because it seeks the same relief as the Application dated 5th March 2026 which was partially allowed in the ruling delivered on 21st November 2025. She argued that the Applicant should have led an application for review if he was of the view that the Court had inadvertently omitted the prayer rather than ling a similar application. 7. She maintained that the Court is functus ocio because the application dated 5th March 22025 was heard and determined on its merits, thereby rendering the matter res judicata. 8. The deponent further asserted that this Court cannot sit on appeal from its own decision or re-determine a prayer that was already determined. She argued that the Applicant has failed to demonstrate any new facts or subsequent developments arising after the delivery of the ruling and that the application was led after an unexplained eight-month delay. 9. She contended that granting the orders would unduly delay the hearing and determination of MCELC No. E272 of 2024. The Response 10. In a further adavit dated 14th August 2026, the Applicant contended that the present application does not seek to review the ruling delivered on 21st November 2025 or to re-open matters already determined thereunder. 11. He argued that the Court in its ruling only framed and determined the issues relating to a temporary injunction and a stay of the ruling dated 11th February 2025, but omitted to address the prayer for a stay of proceedings. He further argued that the present application merely seeks the determination of a substantive prayer that was not addressed. He reiterated that the appeal would be rendered nugatory if the lower Court matter proceeds to hearing and determination. 12. The application was canvassed by way of written submissions. The Appellant/applicant Submissions 13. The Applicant led his submissions dated 17th August 2026. 14. On behalf of the Applicant, Counsel submitted that the only issue for determination is whether the proceedings in the lower court should be stayed. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5672/eng@2026-09-23 2

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15. Counsel invoked Section 3A of the Civil Procedure Act to submit that the Court has power to make such orders as may be necessary for the ends of justice. Counsel further relied on Sections 1A and 1B to emphasise the Court's duty to facilitate the just, expeditious and proportionate resolution of civil disputes. 16. Counsel urged the Court to exercise its discretion by balancing the Respondent’s right to an expeditious determination of the lower court dispute against the Applicant’s constitutional right of appeal. Relying on Ezekiel Mule Musembi v H. Young and Company Limited (2019) eKLR and Global Tours & Travels Nairobi High Court Winding Up Cause No. 43 of 2000, Counsel submitted that a stay of proceedings is discretionary. 17. Counsel further cited William Holden Wildlife Foundation vs Mount Kenya Game Ranch Limited; Chief Land Registrar (Interested Party) (2026) KEELC 1936 to outline the principles governing an application for stay of proceedings. Counsel also relied on the supporting adavit to urge the Court to grant the stay as prayed 18. Counsel further submitted that the Court is not functus ocio as the Applicant is not seeking to review, vary or set aside the order made in the ruling delivered on 21st November 2024 but rather seeks the determination of the substantive prayer for stay of proceedings. 19. Regarding the delay, Counsel submitted that the prayer for stay was initially made on 5th March 2025 and was subsequently brought to this Court’s attention on 30th April 2026 when a hearing date was reserved. Accordingly, Counsel contended that the Applicant had a legitimate expectation that the appeal would be heard and determined before the conclusion of the proceedings in the lower court. 20. He maintained that the Respondents would not suer any prejudice that could be compensated by an award of damages if the stay of proceedings were granted. At the time of writing this ruling, the Respondents had not led their submissions as directed. Analysis And Determination 21. Having considered the application, the respective adavits and the submissions on record, the following issues are for determination: a) Whether the present application is barred by the doctrines of res judicata ad functus ocio; and b) Whether the proceedings in the lower court should be stayed. 22. The Respondents contend that the present application is barred by the doctrine of res judicata because the Applicant had previously sought an order to stay the proceedings in the lower court, which was heard and determined by the ruling delivered on 21st November 2025. 23. The doctrine of res judicata is anchored in Section 7 of the Civil Procedure Act, which provides as follows: “ No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and nally decided by such court.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5672/eng@2026-09-23 3

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24. In Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others [2017] KECA 477 (KLR), the Court outlined the elements of res judicata as follows: Thus, for the bar of res judicata to be eectively raised and upheld on account of a former suit, the following elements must all be satised, as they are rendered not in disjunctive, but conjunctive terms; (a) The suit or issue was directly and substantially in issue in the former suit. (b) That former suit was between the same parties or parties under whom they or any of them claim. (c) Those parties were litigating under the same title. (d) The issue was heard and nally determined in the former suit. (e) The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised. 25. The Applicant contends that the Court did not determine the prayer for stay of proceedings in the earlier application. It is not in dispute that the Applicant had previously led an application seeking, inter alia, an order to stay the proceedings in the lower court. I have carefully perused the ruling delivered on 21st November 2025, and note that it did not determine whether to grant or deny the prayer for a stay of proceedings in the lower court. The prayer was expressly sought but inadvertently left undetermined. The Respondents' argument that the Applicant ought to have sought a review would only hold if the Applicant were seeking to challenge or alter that determination. The Court is being asked to determine a prayer which, according to the record, was left undetermined. In light of the material before the Court, I am not persuaded that the present application is barred by the doctrine of res judicata. 26. The Respondent further contends that the Court became functus ocio upon determining the Applicant’s earlier application. Black’s Law Dictionary, 9th Edition, denes functus ocio as follows: Having performed his or her oce (of an ocer or ocial body) without further authority or legal competence because the duties and functions of the original commission have been fully accomplished. 27. The doctrine of functus ocio was articulated by the Supreme Court in Raila Odinga & 2 Others v Independent Electoral & Boundaries Commission & 3 Others [2013] eKLR as follows: “ We, therefore, have to consider the concept of “functus ocio,” as understood in law. Daniel Malan Pretorius, in “The Origins of the functus ocio Doctrine, with Specic Reference to its Application in Administrative Law,” (2005) 122 SALJ 832, has thus explicated this concept: ‘The functus ocio doctrine is one of the mechanisms by means of which the law gives expression to the principle of nality. According to this doctrine, a person who is vested with adjudicative or decision-making powers may, as a general rule, exercise those powers only once in relation to the same matter.… The [principle] is that once such a decision has been given, it is (subject to any right of appeal to a superior body or functionary) nal and conclusive. Such a decision cannot be revoked or varied by the decision-maker.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5672/eng@2026-09-23 4

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28. Similarly, in Telkom Kenya Limited v John Ochanda (Suing on his own behalf and on behalf of 1996 former employees of Telkom Kenya Limited) [2014] eKLR, the Court of Appeal held that; “ Functus ocio is an enduring principle of law that prevents the re-opening of a matter before a court that rendered the nal decision thereon. The general rule that the nal decision of a court cannot be reopened derives from the decision of the English Court of Appeal in Re St Nazarire Co (1879), 12 Ch. D 88. The basis for it was that the power to rehear was transferred by the Judicature Acts of the appellate division. The rule applied only after the formal judgment had been drawn up, issued and entered, ….” 29. Applying these binding principles, it is clear that when a Court has already pronounced itself on a matter, it is deemed to have discharged its mandate and becomes functus ocio. 30. However, the doctrine does not preclude a Court from determining a substantive prayer properly before it, even if the Court inadvertently left it unaddressed. The critical question is whether the earlier ruling considered and decided the prayer for a stay of proceedings. In the matter at hand, the Court did not decide that prayer, which the Applicant asks the Court to reconsider. Accordingly, I nd that the Court is not functus ocio in respect of the prayer for stay of proceedings. 31. Regarding the second issue, the Applicant seeks to stay the proceedings before the lower court pending the hearing and determination of the Appeal. Stay of proceedings is a discretionary remedy. In Global Tours & Travels Limited Nairobi Winding up Cause No 43 of 2000, the Court emphasized that the power to stay proceedings must be exercised judiciously, having due regard to the circumstances of the case. The general principles guiding the Courts on stay of proceedings are summarized in Halsbury’s Law of England, 4th Edition, Vol 37 at pages 330 and 332 as follows: “ The stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantive merits of his case, and therefore the court’s general practice is that a stay of proceedings should not be imposed unless the proceedings beyond all reasonable doubt ought not to be allowed to continue.” 32. In Ferdinard Ndung’u Waititu v Independent Electoral & Boundaries Commission (IEBC) & 8 others [2013] eKLR, the Court held that: “ A stay of proceedings involves arresting or stopping proceedings. It is a tool used to suspend proceedings to await the action of one of the parties in regard to some step or some act (see Black’s Law Dictionary). This implies that the rationale for stay is the pendency of an act or step either required by the court or sought by a party. It may be grounded on a statutory provision or on the need of a party and based on a plea for the plenary exercise of the court’s discretion.” 33. In its ruling dated 21st November 2025, this Court granted an interim injunction preserving the Applicant’s possession and use of the suit premises pending the hearing and determination of the appeal. The lower court proceedings sought to be stayed relate to the same subject matter as the pending appeal. If the lower court proceedings are allowed to proceed while the appeal is pending, there is a real risk of conicting orders being issued, which would defeat this Court's orders. In these circumstances, the purpose of a stay is to preserve the substratum of the appeal. 34. In the end, I nd that the application is merited and is hereby allowed as prayed. Costs in the cause. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5672/eng@2026-09-23 5

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RULING SIGNED, DATED, AND DELIVERED VIA MICROSOFT TEAMS THIS 23RD DAY OF SEPTEMBER, 2026. ……………………………………. HON. T. MURIGI JUDGE In The Presence Of: Ms Juma holding brief for Kamau Muturi for the 1st and 2nd Respondents Ahmed – Court assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5672/eng@2026-09-23 6

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