M’Riria & 2 others v Kuura & 2 others

consequential orders pending the hearing and determination of the civil appeal no.327 of 2019 before the court of appeal d) The costs of the application to be in the cause 2. The application was premised upon Sections 1A, 1B, 3 and 3A of the Civil Procedure Act, Order 17 Rules 2, 3 and 4; Order 50 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules, 2010 together with all enabling provisions of the law 3. Specifically, I am to determine whether the application meets the threshold for grant of stay of execution orders pending the hearing and determination of an appeal, filed at the Court of Appeal. 4. The application was premised on the grounds outlined and in the two affidavits sworn by Mkuura M’Riria on 29th January 2026 and 20th April 2026, respectively. 5. In response, the 3rd Respondent did file a Replying affidavit deponed on 17th March 2026 as well as, a statement of grounds of opposition dated the 24th February 2026 stating among others, grounds opposing the grant of the stay order. 6. The respondent summarized the grounds as follows; - ELC CASE NO.112 OF 2017-RULING 2

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a) The application is misconceived, mischievous, untenable in law and a complete abuse of the court process b) The court lacks jurisdiction to hear and determine the application particularly the order of stay of execution, as the same flaunts the doctrine of Res Judicata in view of the ruling of the court dated 24.10.2019 c) There is no pending appeal to sustain the prayer sought since Civil Appeal no. 327 of 2019 was dismissed on 26th November 2024 by the court of appeal d) The eviction orders sought to be stayed were issued by the court, by dint of its judgement dated the 19.3.2018, to wit no appeal or stay orders exists 7. Through his Replying Affidavit dated 17th March 2026, the 3rd respondent, averred that the application is misconceived, illfounded, mischievous and is devoid of merit and ought to be dismissed with costs. 8. The respondent further argued that; ELC CASE NO.112 OF 2017-RULING 3

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a) This court lacks jurisdiction to entertain the application on account of it being res judicata. b) The court is functus officio by dint of the fact that Civil Appeal No.327 of 2019 was dismissed by the court on 26th November 2024. c) The application has no legal basis and is therefore a waste of the court’s time. 9. The motion was subsequently canvassed by way of written submissions which I have had sight of and considered. 10. The applicant filed their set of arguments dated 22nd April 2026 where they conceded that, indeed, on 19th March 2018, the court did render a judgement in the matter, granting orders of cancellation of their titles and eviction from the suit property among others. 11. Being dissatisfied with the said judgement, they ended up filing an appeal before the court of appeal, vide Civil Appeal No. 327 of 2019 which is still subsisting. The applicants conceded that, prior to filing the appeal, their former advocate had lodged an earlier appeal that was dismissed. According to them, the dismissal did not dispose the current appeal and it is presently, awaiting hearing. ELC CASE NO.112 OF 2017-RULING 4

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12. Additionally, they contended that the respondents appeared before the court and misrepresented information that the appeal had been dismissed which was untrue, and based on the misrepresentation, the court issued eviction orders against them. As such, they are apprehensive that they will be forcefully evicted from the suit property if the stay orders are not issued and by dint of that, the appeal shall be rendered nugatory, cause them hardship, and irreversible loss 13. Importantly, the applicant submitted that no prejudice shall be occasioned if the stay orders were issued. Thus, they urged the court to allow the motion as prayed. ISSUES FALLING FOR DETERMINATION: 14. The court has meticulously gone through the record and considered the application before it, as well as the responses filed and rival arguments by parties. 15. The twin issues falling for determination in my view, are whether; (i) The application is res judicata as claimed; ELC CASE NO.112 OF 2017-RULING 5

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(ii) whether the application meets the criteria to grant an order of stay of execution of its judgement/decree/order pending the hearing and disposal of an appeal before the Court of Appeal. I. 16. Is the Application, Res Judicata? The common law doctrine of res judicata has been enacted as part of Kenya’s statute law under Section 7 of the Civil Procedure Act which provides that; “No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in use 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 finally decided by such court.” 17. Kenya’s Parliament legislated explanatory notes defining the doctrine in details. From the highlighted notes under Section 7, ELC CASE NO.112 OF 2017-RULING 6

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a party alleging res judicata must demonstrate the following key elements; (i) There exist a previous suit relating to the same cause of action, that was determined before a court of competent jurisdiction; (ii) There exists a previous determination of the same cause of action or the same issue by a court of competent jurisdiction; and (iii) There is privity to the previous suit by the parties or legally recognized representatives of the parties in the offending suit. 18. Commenting on the application of this doctrine, the Supreme Court of Kenya in the case of JOHN FLORENCE MARITIME SERVICES LIMITED & ANOTHER V CABINET SECRETARY TRANSPORT & INFRASTRUCTURE & 3 OTHERS [2021] KESC KLR outlined the following as the essential elements of res judicata; “For res judicata to be invoked in a civil matter, the following elements must be demonstrated: (a) There is a former judgment or order which was final; (b) the Judgment or order was on merit; (c) The ELC CASE NO.112 OF 2017-RULING 7

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judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; and (d) There must be between the first and the second action identical parties, subject matter and cause of action. (See Uhuru Highway Developers Limited v Central Bank of Kenya & others [1999] eKLR and the court of appeal decision in Nicholas Njeru v Attorney General & 8 others Civil Appeal 110 of 2011 (2013)eKLR.” 19. Flowing from the foregoing, I have interrogated the ruling and subsequent order made by this court on 24th October 2019. Njoroge J, at the time, ruled that; “The stay of execution of decree/judgement and all consequential orders be and is hereby denied and forthwith dismissed. 20. The order stemmed from an application filed before court dated 5th July 2019, where the applicant herein, sought amongst other prayers, a stay order of execution of the judgement/decree and all consequential orders pending the interparties hearing of the said application. The Judge, while partially ELC CASE NO.112 OF 2017-RULING 8

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allowing the application in terms of prayer no. 2, specifically stated that, prayer 3 for stay of execution of the decree/judgement and all consequential orders is hereby denied and forthwith dismissed 21. The finding by Njoroge J. resulted from a careful assessment of the application, inter parties while fully appreciating the rival arguments, facts and evidence as submitted by parties. It would therefore be foolhardy if this court proceeds to entertain a similar application, filed seven years later, and seeking to stay execution of a judgement/decree issued way back on 19th March, 2018. 22. This in my view, is not only an abuse of the court process, but it is untenable and arduous, to say the least. 23. From this background, I am able to sieve out the following which by and large, gives me persuasion that the application before me, offends Section 7 of the Civil Procedure Act; a) The applicant herein had, in 2019, specifically, the 5.7.2019 sought for similar orders of stay of execution of the court’s judgement dated 19 th March 2018. ELC CASE NO.112 OF 2017-RULING 9

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b) The application was heard substantively and conclusively before this court, which is of competent jurisdiction c) The court ended up dismissing the prayer of stay of execution of the judgement pending appeal and all consequential orders after hearing rival parties on merit d) At the time, the motion was moved by the applicant herein, thus giving cognition that the determined application and the current one, involves identical parties, and issues as envisaged under Section 7 of the Civil Procedure Act 24. Cascading from the foregoing, I am persuaded to hold, that the application offends the common law doctrine of res judicata, and can not therefore, be entertained as pleaded. II. Does the application meet the threshold of granting an order for stay of execution of its judgement/decree/order pending the disposal of an appeal before the court of appeal? ELC CASE NO.112 OF 2017-RULING 10

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25. Having found that the application offends the doctrine of Res Judicata, it is materially apt, to conclude that the orders sought herein, can not grant by dint of Section 7 of the Civil Procedure Act 26. In any event, litigation should at some point, come to an end. Parties should not always approach the court, to re-litigate issues exhaustively handled and determined. A party should know when to hang up their boots and when to plough. As a matter of fact, and particularly taking into context, the provisions of Section 1A and 1B of the Civil Procedure Act, as well as appreciating the foregoing discourse, I find no merit in this application. 27. I am therefore inclined to dismiss the application dated 29th January 2026 with costs 28. It is so ordered. RULING DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS, SIGNED AND DATED THIS 21ST DAY OF JULY, 2026 L.T. LEWA JUDGE ELC CASE NO.112 OF 2017-RULING 11

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IN THE PRESENCE OF: APPLICANT: Mr. John Swaka 3RD RESPONDENT: Mr. Muigai holding brief for Mr. Manyara COURT ASSISTANT: Mr. Musyimi ELC CASE NO.112 OF 2017-RULING 12

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