Oduor v BOM Ahero Girls High School

deposes that the appeal is incompetent, having been lodged approximately seventeen months after delivery of judgment, contrary to the requirement that a notice of appeal be led within fourteen days and the record of appeal within sixty days. The Applicant further avers that the Respondent has previously led several applications for stay before both this Court and the subordinate court, all of which were either dismissed or withdrawn, as demonstrated by annextures "GO1-GO4". It is therefore his contention that the present application is barred by the doctrines of res judicata and issue estoppel and amounts to forum shopping and an abuse of the court process. He further maintains that the Respondent's oer to deposit the decretal sum as security is not made in good faith, as similar undertakings were given in previous applications but were never honoured. Accordingly, he urges the Court to strike out or dismiss the application with costs and direct immediate satisfaction of the decree. 3. In response, the Respondent led a further adavit in which it denies that the application is res judicata or amounts to an abuse of the court process. It explains that the earlier application for stay was withdrawn because there was no substantive appeal pending before the Court of Appeal at the time, unlike the present circumstances where a substantive appeal has since been led. 4. On the issue of functus ocio, the Respondent maintains that this Court retains jurisdiction to entertain an application for stay of execution pending appeal pursuant to Order 42 Rule 6 of the Civil Procedure Rules, section 12 of the Employment and Labour Relations Court Act and Rule 32 of the Employment and Labour Relations Court (Procedure) Rules. It further attributes the delay in ling the appeal to the late supply of typed proceedings, the certied judgment and decree, contending that the delay is capable of being regularized through the issuance of a certicate of delay. 5. Finally, the Respondent reiterates that it has acted in good faith by oering to deposit the entire decretal sum, together with costs and accrued interest, either in court or in a joint interest-earning account as security pending the appeal. It further contends that the Applicant has not demonstrated the nancial ability to refund the decretal sum should he be paid and the appeal ultimately succeeds and reiterates that, unless stay is granted, the appeal will be rendered nugatory. It accordingly urges the Court to allow the application. 6. The application was canvassed by way of written submissions. Respondent's Submissions 7. On the issue of functus ocio, the Respondent submits that the doctrine does not preclude this Court from entertaining an application for stay of execution pending appeal after delivery of judgment. In support of this proposition, it relies on Raila Odinga & 2 others v Independent Electoral and Boundaries Commission & 3 others [2013] eKLR, where the Supreme Court held that the doctrine does not bar a court from exercising residual jurisdiction donated by the Constitution or statute, and Telkom Kenya Limited v John Ochanda (Suing on his own behalf and on behalf of 996 Former Employees of Telkom Kenya Limited) [2014] eKLR, in which the Court of Appeal held that the doctrine does not prevent a court from dealing with consequential proceedings incidental to its judgment. 8. On the application being res judicata, the Respondent submits that the doctrine is inapplicable. It maintains that there has never been a nal determination on the issue of stay contending that the earlier application was withdrawn because of lack of a substantive appeal. Reliance is placed on the decision in the case of Independent Electoral and Boundaries Commission v Maina Kiai & 5 others [2017] eKLR, where the Court set out the essential ingredients of res judicata, namely the existence of a former suit, the same identity of issues and parties, hearing and nal determination of the issues on merit and the presence of a competent court that previously handled the matter. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2099/eng@2026-07-22 2

page 2 of 4

9. As for conditions for stay pending appeal, the Respondent submits that it has satised the provisions of Order 42 Rule 6(2) of the Civil Procedure Rules. On substantial loss, it asserts that the Appellant has not demonstrated his ability to pay back the decretal amount if it is paid out and the appeal ultimately succeeds. It cites the case of National Industrial Credit Bank Ltd v Aquinas Francis Wasike & another [2006] eKLR, for the proposition that once an applicant raises a reasonable apprehension regarding the reayspondent's nancial ability, the evidential burden shifts to the respondent to demonstrate his means. 10. With regard to delay, the Respondent submits that any delay was occasioned by the Court's failure to avail typed proceedings together with the certied judgment and decree in good time. It therefore contends that the application was led without unreasonable delay. On security for the due performance of the decree, the Respondent reiterates its willingness to deposit the entire decretal sum, together with costs and accrued interest, either in court or in a joint interest-earning account in the names of both advocates on record. It relies on Focin Motorcycle Co. Limited v Ann Wambui Wangui & another [2018] eKLR for the proposition that security serves to guarantee due performance of the decree should the appeal fail. In conclusion, the Respondent urges the Court to grant the orders sought, submitting that the Applicant will suer no prejudice since the decretal sum will remain secured pending determination of the appeal. Appellant's Submissions 11. On his part the Appellant submits that there is no competent appeal capable of anchoring the present application for stay of execution. He asserts that the record of appeal was lodged approximately seventeen months after delivery of judgment in contravention of Rules 77(2) and 84(1) of the Court of Appeal Rules, 2022. In support of this proposition, the Appellant relies on the decision in the case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR, where the Supreme Court held that an appeal led out of time without leave is a nullity incapable of retrospective regularization. On the issue of res judicata, the Applicant submits that the present application seeks substantially the same relief as that sought in the application dated 14th January 2026 in Kisumu ELRC No. E042 of 2020, which was dismissed by Ogombe J. on 10th February 2026. He contends that the ruling has neither been appealed nor set aside and that the present application is therefore barred by section 7 of the Civil Procedure Act. In support of this argument, he relies on Independent Electoral & Boundaries Commission v Maina Kiai & 5 others [2017] eKLR, where the Court emphasized that the doctrine of res judicata promotes nality in litigation and protects parties from being repeatedly vexed by matters already determined. In the alternative, the Appellant submits that even if res judicata is inapplicable, the Respondent's repeated ling of applications for stay constitutes forum shopping and an abuse of the court process. For this proposition, he relies on Zakayo Sang & 9 others v Attorney General & 4 others [2016] eKLR, in which the High Court identied the institution of multiple proceedings over the same subject matter as a classic example of abuse of process. 12. The foregoing notwithstanding, the Appellant submits that the Appellant has not satised the conditions for stay under Order 42 Rule 6(2) of the Civil Procedure Rules. On substantial loss, he submits that the Respondent has not adduced any evidence establishing a reasonable apprehension that the decretal sum would not be recoverable if the appeal succeeds. In support of this contention, he relies on Kenya Shell Limited v Benjamin Karuga Kibiru & another [1986] KLR 410, where the Court of Appeal held that substantial loss is the cornerstone of an application for stay, and James Wangalwa & another v Agnes Naliaka Cheseto [2012] eKLR, in which the Court held that the mere commencement of execution does not constitute substantial loss. The Appellant also cites National https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2099/eng@2026-07-22 3

page 3 of 4

Industrial Credit Bank Ltd v Aquinas Francis Wasike & another [2006] eKLR, for the proposition that the evidential burden only shifts to the respondent once the applicant establishes a reasonable factual basis for apprehending inability to refund the decretal sum. 13. On delay, the Applicant submits that the period of approximately seventeen months between delivery of judgment and the ling of the application is inordinate and has not been satisfactorily explained. Regarding security, the Applicant contends that although the Respondent has repeatedly expressed willingness to deposit the decretal sum, it has consistently failed to honour that undertaking despite asserting that it has the nancial capacity to do so. Relying on Focin Motorcycle Co. Limited v Ann Wambui Wangui & another [2018] eKLR, he submits that the repeated but unfullled promises to furnish security demonstrate lack of good faith rather than compliance with Order 42 Rule 6(2)(b) of the Civil Procedure Rules. He therefore urges the Court to dismiss the application with costs and direct immediate payment of the decretal sum together with accrued interest and taxed costs. Disposition 14. The Court is not functus ocio in as far as the suit herein goes. Applications can be made prior to the Court being functus. In the motion before the Court there is a prayer that stay be granted pending appeal. The Applicant has oered to deposit the entire decretal sum in court or in an interest earning account. The conditions for grant of stay include factors such as the applicant stands to suer substantial loss if stay is not granted, that the application was led without unreasonable delay, and that it is ready and willing to furnish security for the due performance of the decree. In this case there is satisfaction of the criteria for the grant of stay. The entire decretal sum must be deposited in an interest earning account in the joint names of advocates on record within 21 days of today failing which the stay granted automatically lapses should the failure be entirely attributable to the Applicant herein. The costs of this motion will abide the outcome of the appeal. It is so ordered. DATED AND DELIVERED AT KISUMU THIS 22ND DAY OF JULY 2026 NZIOKI WA MAKAU, MCIARB. JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2099/eng@2026-07-22 4

page 4 of 4