Caroline Njeri Kahura v Elizabeth Wanjiku Kageche

Respondent contends that the application is res judicata, a similar application having been heard and dismissed by the trial Court on 12th February, 2024. Secondly, the Respondent has urged that this Court lacks jurisdiction to entertain both the application and the appeal on account of Section 79G of the Civil Procedure Act, since no leave has been sought or obtained to lodge the appeal out of time. 4. According to the Respondent, the trial Court issued a decree on 31st October, 2023, whereupon the Appellant filed an application for stay of execution but failed to prosecute it, resulting in its dismissal for non-attendance on 12th February, 2024. She argues that the filing of the present application amounts to an abuse of the court process. In addition, the Respondent contends that the application discloses no arguable appeal, and that the Appellant has not sought leave to appeal out of time save for a prayer in that regard inserted in the Memorandum of Appeal. It is further urged that the Respondent stands to suffer grave prejudice, the cause of action having arisen as far back as 2018, with the delays in determination being solely attributable to the Appellant. 5. The Respondent further asserts that the Appellant has failed to demonstrate the likelihood of suffering substantial loss, has not proposed or offered any form of security as required under Order 42 Rule 6 of the Civil Procedure Rules, and has given no plausible explanation for the inordinate delay. She maintains that the Warrants of Attachment were lawfully issued and therefore prays that the application be dismissed with costs. Analysis and Determination 6. This Court wishes to begin by noting that it has found some difficulty in comprehending the precise nature of the orders sought by the Appellant in the present application. However, the Court has also reminded itself that the Appellant is acting in person, without the benefit of legal representation. Therefore, the Appellant being a layperson, the court is enjoined to approach her pleadings with the necessary latitude, guided by the duty to do substantive justice rather than to be unduly constrained by procedural technicalities pursuant to the provisions of Article 159(2)(d) of the Constitution which obligates courts to administer justice without undue regard to technicalities. It is thus in that spirit that this court shall consider this application. 7. That having been said, what this Court understands the Appellant to be seeking is an order for stay of execution of the Judgment delivered against her on 31st July, 2023, together with an order for stay of all further proceedings in the trial suit, pending the hearing and determination of the present appeal. The Respondent on the other hand, through her Notice of Preliminary Objection and Replying Affidavit, both dated 10th February, 2025, has opposed the application on two major grounds; firstly, that the present application is res judicata since a similar application for stay was made before the trial Court and dismissed on 12th February, 2024; and secondly, that this Court lacks jurisdiction to entertain the appeal and the application, the appeal having been filed outside the statutory timelines without the Appellant first seeking and obtaining leave. 8. In view of the two rival positions, the issues that commend themselves for determination are:a. Whether the present application is res judicata by reason of the earlier application for stay filed and dismissed before the trial Court; b. Whether the appeal herein was filed out of time, and if so, whether this Court has jurisdiction to entertain it; and, c. Whether, in the circumstances, the court can grant the orders of stay of execution sought by the Appellant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19300/eng@2025-10-31 2

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a. Whether the present application is res judicata by reason of the earlier application for stay ffiled and dismissed before the trial Court. 9. The doctrine of res judicata is codified under Section 7 of the Civil Procedure Act, which bars a court from trying any suit or issue that has already been heard and finally determined by a court of competent jurisdiction between the same parties or parties litigating under the same title. The underlying objective of the doctrine is to preserve the finality of litigation, shield parties from repetitive claims, prevent abuse of the court process, and ensure that judicial time and resources are not wasted by relitigating matters already settled. 10. In the present matter, it is common ground that the Appellant previously moved the trial Court by way of an application for stay of execution of the decree issued on 31st October, 2023. However, that application was dismissed on 12th February, 2024 for reasons of non-attendance and the Respondent now argues that the dismissal of that application automatically renders the present application res judicata. 11. With respect, this Court wishes to take a different view. The applicant before the trial Court and the one presently before this Court, though related in substance, are procedurally and jurisdictionally distinct. Proceedings in the trial Court and those in an appellate court are not one and the same hence a party is perfectly entitled to seek interim stay of execution pending appeal in the primary suit before the trial court immediately after Judgment. And once an appeal is lodged, that same party is equally entitled to move the appellate court to exercise its original jurisdiction under Order 42 Rule 6 of the Civil Procedure Rules for grant of stay of execution pending the determination of the appeal. Therefore, these two applications, though similar in nature, are lodged in difference for a and are designed to serve different purposes at different procedural stages. As such, both the trial Court and the Appellate Court have jurisdiction to grant stay orders, with the Appellant Court retaining ultimate supervisory power to ensure that the appeal is not rendered nugatory. 12. Moreover, the bar of res judicata only arises where the former matter has been heard and finally determined on its merits. As was observed by the Court of Appeal in the case of Uhuru Highway Development Ltd v Central Bank of Kenya & 2 Others[1996]eKLR, and reiterated by the Supreme Court in the case of Nicholas Njeru v Attorney General & 8 Others [2013]eKLR, the doctrine presupposes a substantive adjudication of the issues raised. A dismissal for non-attendance, such as occurred on 12th February, 2024 before the trial Court does not amount to a final determination of the merits of the issues that had been raised in that application and hence cannot rigger the application of Section 7 of the Civil Procedure Act. 13. In the circumstances, this Court reiterates that the Appellant’s right to seek stay before this Court fiows directly from the appeal she has lodged, and therefore this Court is not bound by the earlier dismissal order made by the trial court. Consequently, the plea of res judicata advanced by the Respondent is unsustainable in law and is hereby rejected. b. Whether the appeal herein was ffiled out of time, and if so, whether this Court has jurisdiction to entertain it. 14. Turning to the second issue, it is common ground that the Judgment of the trial Court was delivered on 31st July, 2023. Section 79G of the Civil Procedure Act provides in clear terms that every appeal from a subordinate court to the High Court shall be filed within thirty (30) days from the date of the decree or order appealed against. The provision further grants the High Court discretion to admit an appeal out of time where sufficient cause is shown. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19300/eng@2025-10-31 3

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15. The record shows that the present appeal was lodged on 26th November, 2024, well over one year and three months after the delivery of the Judgment. The Appellant did not, either contemporaneously or subsequently, file an application for leave to appeal out of time whereas the Memorandum of Appeal included a general prayer that the appeal be admitted out of time. 16. Whereas this Court earlier acknowledged that the Appellant is acting in person and has extended some lenience in construing her pleadings, failure to seek leave to appeal out of time goes to the heart of a court’s jurisdiction. The Court of Appeal in the case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR held that compliance with statutory timelines is not a mere procedural technicality but a matter that touches on the jurisdiction of the Court. Jurisdiction, once lacking, cannot be conferred by acquiescence, waiver, or even by the Court itself. 17. This Court is therefore confronted with the reality that the appeal was filed hopelessly out of time and without leave as required by the provisions under Section 79G of the Civil Procedure Act. In those circumstances, the Court lacks jurisdiction to entertain the appeal as presently constituted. As was held in the case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1, “jurisdiction is everything; once it is found that a court lacks jurisdiction, it must down its tools”. However, for conclusiveness, had the court found that it had the requisite jurisdiction, it would have proceeded as hereunder: c. On whether stay of execution can be granted 18. The grant of stay of execution pending appeal is governed by Order 42 Rule 6 of the Civil Procedure Rules, which requires an Applicant to satisfy three essential conditions: first, that substantial loss may result unless the order is made; second, that the application has been made without unreasonable delay; and third, that the applicant is willing to provide such security as the court may order for the due performance of the decree. 19. In the present case, the Appellant has not demonstrated with any degree of particularity what substantial loss she is likely to suffer if the decree is executed other than alleging imminent execution. As was held by the Court of Appeal in the case of Kenya Shell Ltd v Benjamin Karuga Kibiru & Another [1986] KLR 410, substantial loss is the cornerstone of the jurisdiction to grant stay of execution, and that it must be specifically demonstrated hence mere allegations or fears of execution are insufficient. 20. Further, the application before this Court was filed on 25th November, 2024, nearly sixteen months after the Judgment was delivered. No explanation has been offered for this extraordinary delay hence that unexplained and inordinate delay disentitles an applicant to discretionary relief. 21. Lastly, the Appellant has neither offered nor proposed any security for the due performance of the decree. The provision of security is a mandatory requirement under Order 42 Rule 6(2)(b) and an order of stay cannot issue in the absence of an offer for security. 22. It therefore follows that even if the question of jurisdiction did not arise, the Appellant has failed to meet the settled criteria for grant of stay of execution pending appeal. 23. Accordingly, this Court finds that the Notice of Motion dated 25th November, 2024 is devoid of merit and proceeds to dismiss it with costs to the Respondent. It is so ordered. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT KIAMBU THIS 31ST DAY OF OCTOBER, 2025. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19300/eng@2025-10-31 4

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D. O. CHEPKWONY JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19300/eng@2025-10-31 5

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