Supersonic Freighters Limited v Reuben Ondimu Ouko

4. Aggrieved by that decision, the Appellant lodged an appeal which is currently pending before this Court. It is the Appellant’s position that the appeal has arguable grounds and high chances of success. In the meantime, however, the Respondent has instructed Senema African Auctioneers to execute the decree, and warrants of attachment have already been issued. The Appellant fears that if the execution proceeds, it will suffer substantial loss, and the subject matter of the appeal will be extinguished before the Court has had the opportunity to pronounce itself on the dispute. The Applicant, therefore, urges the Court to preserve the substratum of the appeal by granting a stay of execution. 5. It is further deposed that the application has been made without undue delay and that granting the orders sought will not occasion any prejudice to the Respondent. 6. In support of the application, the Appellant has annexed various documents, including a copy of the earlier application filed in the trial court (marked WK-1), a copy of the ruling dismissing the same (marked WK-2), warrants of attachment issued to the auctioneers (marked WK-3), and a memorandum of appeal (marked WK-4). The response 7. The Respondent, Reuben Ondimu Ouko, has opposed the Appellant’s application through a Replying Affidavit sworn on 23rd June 2025. He avers that he is the decree-holder in Narok CMCC No. E188 of 2021, having successfully obtained judgment against the Appellant, Supersonic Freighters Ltd, following a road traffic accident that occurred on 17th October 2021 involving the Appellant’s motor vehicle registration number KAN 865R. The judgment was delivered on 18th March 2024 in his favour for a sum of Kshs. 271,090 plus interest and costs. A decree dated 16th September 2024 confirmed the total amount due at Kshs. 403,166. 8. The Respondent deposes that the judgment remains valid and has neither been set aside nor reviewed, and that no appeal has been filed against it. Following the Appellant’s failure to settle the decree, the Respondent instructed Senema Auctioneers to commence execution, which prompted the issuance of warrants of attachment. 9. The Respondent asserts that the Appellant had previously sought a stay of execution before the trial court through an application dated 7th February 2025. That application was dismissed on 9th June 2025, with the trial court finding that the Appellant had failed to meet the threshold for stay of execution. He argues that the current application offends the doctrine of res judicata under Section 7 of the Civil Procedure Act, having already been conclusively determined by a court of competent jurisdiction. Accordingly, the Respondent raises a preliminary objection to the jurisdiction of this Court to entertain the application. 10. The Respondent further states that the pending declaratory suit filed by the Appellant against Occidental Insurance Company Limited, the alleged insurer, does not justify a stay of execution. He maintains that he is not privy to the contractual relationship between the Appellant and the insurer, and that the pendency of the declaratory suit should not be used to hinder him from enjoying the fruits of his lawful judgment. He asserts that the declaratory suit is a separate and independent proceeding and should not prejudice his right to execution against the judgment-debtor. 11. He contends that the Appellant has not demonstrated any substantial loss that would warrant the grant of stay, nor has she offered any security for the due performance of the decree, as required under Order 42 Rule 6 of the Civil Procedure Rules. He submits that the application has been filed belatedly and is a scheme designed to delay and frustrate the lawful execution process. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/11772/eng@2025-07-31 2

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12. The Respondent further invokes the overriding objective under Section 1A and the inherent power of the Court under Section 3A of the Civil Procedure Act, urging the Court to prevent abuse of its process and to ensure the timely and just conclusion of litigation. He argues that granting the orders sought would occasion him undue prejudice, irreparable loss, and prolonged suffering. 13. In conclusion, the Respondent prays that the application be dismissed with costs, stating that it is frivolous, incompetent, an abuse of court process, and lacking in merit. Analysis And Determination. 14. The main issues arising for determination are: a. Whether the present application is res judicata; b. Whether the Appellant has satisfied the conditions for grant of stay of execution under Order 42 Rule 6(2) of the Civil Procedure Rules; and c. Whether the Court should grant a stay of execution pending appeal. a. 15. The doctrine of res judicata under Section 7 of the Civil Procedure Act precludes a party from relitigating a matter already determined by a court of competent jurisdiction. While it is true that the trial court dismissed a similar application, the present application is now before an appellate court, and therefore, the principle of res judicata does not strictly apply. The Appellant is entitled to seek interim relief from this Court pending appeal. This ground of objection fails. b. 16. Whether the Application is Res Judicata Whether the Conditions for Grant of Stay are Met Order 42 Rule 6(2) of the Civil Procedure Rules requires the applicant to satisfy three conditions: i. the application has been made without unreasonable delay, ii. substantial loss may result if the stay is not granted, and iii. the applicant is willing to furnish security for the due performance of the decree. 17. On the first limb, the ruling dismissing the application before the trial court was delivered on 9th June 2025, and this application was filed on 16th June 2025. I find the application to have been made without unreasonable delay. 18. On the second limb, the Appellant claims that it will suffer substantial loss if execution proceeds, particularly because it disputes liability for the decretal sum. However, the Appellant has not demonstrated what irreparable prejudice it stands to suffer beyond the normal consequence of being compelled to settle a monetary decree. Mere inconvenience or the fact that the judgment debtor may later recover from its insurer does not amount to substantial loss. In Kenya Shell Ltd v Benjamin Karuga Kibiru & Anor [1986] KLR 410, the Court of Appeal held that substantial loss must be demonstrated and not merely alleged. 19. On the third limb, the Applicant has not offered any form of security for the due performance of the decree. The provision of security is a mandatory requirement. In Equity Bank Ltd v Taiga Adams Company Ltd [2006] eKLR, the court emphasized that failure to provide security disentitles an applicant from the equitable relief of stay. c. Whether the Court Should Exercise its Discretion to Grant Stay https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/11772/eng@2025-07-31 3

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20. This Court must also balance the interests of both parties. The Respondent has a valid judgment in his favour and is entitled to the fruits thereof. The appeal is yet to be prosecuted, and no assurance has been given as to when it will be heard. Granting a stay in the absence of security or demonstrable prejudice to the Appellant would unduly prejudice the Respondent. At the same time, justice would demand that the appeal not be rendered nugatory if successful. 21. To balance the scales, the Court would be inclined to grant a conditional stay of execution, only upon the Appellant furnishing security. Disposition 22. 23. In the result, I make the following orders: i. The Appellant’s application dated 16th June 2025 for stay of execution pending appeal is allowed on condition that the Appellant deposits the entire decretal amount of Kshs. 424,642 in an interest-earning joint account in the names of counsel for both parties within thirty (30) days from the date of this ruling. ii. In default of compliance with Order (1) above, the stay of execution shall stand automatically vacated. iii. Costs of the application shall abide the outcome of the appeal. It is so ordered. DATED, SIGNED, AND DELIVERED AT NAROK THROUGH TEAMS APPLICATION, THIS 31ST DAY OF JULY, 2025 CHARLES KARIUKI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/11772/eng@2025-07-31 4

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