Cargo Flex Logistics (cfx) Limited v Geoffrey Wanjala Wasike (suing As The Legal Administrator of The Estate of Mathew Mayabi Wekesa)

3. The applicant deposited Kshs. 5,000,000/= in the KCB Judiciary account on 16/7/2025 which was outside the timelines set by the court. At the time of filing the present application the respondent had already procured warrants of attachment and had instructed Auctioneers to attach the applicant’s properties. 4. This court ordered that there be stay of execution for a period of 14 days and ordered that the respondent be served. The matter was fixed for inter-partes hearing on 30/7/2025. In the applicant’s submissions, they stated that they complied with the order by Justice Matheka but there was delay in depositing the Kshs. 5 Million and they had to file an application for stay. They state that there was some delay as the Insurance had to pay Kshs. 3,000,000/= and the applicant to pay Kshs. 2,000,000/=. 5. The applicant contends that the delay was not in bad faith as it was the process of requisition of the funds that hit a snag due to unavailability of funds for which the applicants are coherently remorseful for. The applicant urged he court to order the release of the attached motor vehicles. 6. The respondent opposed the application and contends that the court had granted a conditional stay and a default clause if there was none compliance with the order. That the applicant sought the extension of time within the order but the court declined to entertain the application. The court ordered that the order for stay of execution lapsed and the default clause took effect. 7. That the party was supposed to seek a review but not to file an application for stay. That the order by Judge Matheka had stayed the proclamation. That the application is res judicata. The respondent further submits that there was none compliance as the amount deposited was Kshs. 4,800,000/=. It is further submitted that the applicant was ordered to file the record of appeal and has not complied. That the applicant did not seek extension of time within which to deposit the security. That courts hands are fettered. 8. That the applicants have not demonstrated that they are likely to suffer substantial loss. That they have not demonstrated that the respondent will not be able to refund if the Judgment is set aside. 9. In response the appellant submitted that the application was filed after the auctioneers attached the applicant’s motor vehicle, relies on Section 7 of the Civil Procedure Act. That the application which was filed was not determined on merits. That the counsel did not raise a preliminary objection. He relies on Douglas Mbugua Muigai -vs- Harrison Civil Application No. 167 of 2010, Stephen Boro vs- Family Finance Building Society. They urged the court to order stay as they want to sell the vehicles and yet Kshs. 5,000,000/= was deposited. That the mistake of counsel not to be visited on the party. 10. I have considered the application, the submission and he authorities cited. The issues that arise for determination are: 11. 1. Whether the application for stay of execution is res judicata. 2. Whether the court has discretion to order stay of execution. Whether the application for stay of execution is res judicata Res judicata is a doctrine that holds that a matter that has been heard and determined by a court of competent jurisdiction cannot be litigated again before the same court. The Oxford languages Dictionary defines res judicata as follows: “ a matter that has been adjudicated by a competent court and therefore may not be pursued further by the same parties.” The doctrine refers to the finality of determination of a dispute between same parties in Civil disputes. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19509/eng@2025-11-11 2

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12. Under our Law, ‘res judicata’ is provided under Section 7 of the Civil Procedure Act which prevents the same parties from re-litigating a suit or an issue that was directly and substantially decided in a prior case between them. The doctrine has four aspects, the finality of the Judgment, between same parties or those claiming under them, competent court, matter directly and substantially in issue and purpose which is to prevent abuse of court process. 13. Section 7 Civil Procedure Act provides: “ No court shall try any suit or issue in which the matte directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties under which they or any of them claim, litigate 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.” 14. Simply put res judicata is a bar to subsequent proceedings involving same issue as have been finally and conclusively decided by a competent court in a prior suit between the same parties or their representatives. It is a doctrine that resonates with time honoured saying that there should be an end to litigation. See the case of John Florence Maritime Services & Another -vs- Cabinet Secretary for Transport & Infrastructure & Others Pet. 64/2013 (2015) KECA 472 KLR. 15. The court of Appeal stated that res judicata can be raised as a valid defence. It is a doctrine of general applications. The present application seeks an order of stay of execution and stay of sale of motor vehicle registration number KBJ 351M/ZE 0054 Mercedes Benz Actros MP1 with trailer pending inter partes hearing of the application. That the court to order the release of the said motor vehicle. That the court to order stay of execution of the Judgment in Makueni Civil Case No. E017/2024 pending the hearing and determination of the appeal. 16. The application was filed after the order issued by sister Judge, Matheka lapsed. The order was issued exparte. Order 40 rule 4 Civil Procedure Rules provides that: “ An exparte injunction may be granted only once for not more 14 days and shall not be extended thereafter except once by consent of the parties or by the order of the court for a period not exceeding fourteen days.” 17. The order was issued ex-parte. The order lapsed before the applicant could comply with it. A lapsed order in my view refers to an order that has expired and can be permanent and final. It means it can last for as long as it remains valid and relevant. On the other hand, a temporary order is one that is issued for a period and may cease to have any force owning to some event and when it lapses. It can refer to an order that ceases to be relevant or has expired. An order that lapses is one that ceases to have effect or has become invalid, usually due to passage of a specified time period or the failure of a party to comply with a condition attached to the order. 18. The order in question was issued ex-parte. It was to be complied with within 45 days. The order was for a limited period and conditional upon fulfilling certain conditions. The order lapsed. It is my view that a party can apply for a fresh order or to reinstate the application. The order does not meet the requirements for res judicata as it was issued ex-parte and was a temporary order which was to last for a limited period. 19. The applicant relied on Mbugua Harrison Mungai -vs- Harrison where the court of Appeal granted an application for stay on consideration that the appeal would be rendered nugatory. That preserving the status quo treated the parties with equality and preserved the right of appeal pending final https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19509/eng@2025-11-11 3

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determination, thus striking a balance in the circumstances is acting fairly and does satisfy the principal aims of the overriding objectives, see Stephene Boro Gitiha -vs- Family Finance Building Society. 20. I find the application for stay of execution was not res judicata. The order lapsed before the applicant could fully comply with it. The applicant’s contention that he was not able to raise the money within 45 days is plausible as amount of money to be deposited was huge, it was not in bad faith. Once the order lapsed the option was to apply for a fresh order which could be done through an application for review or to file a fresh application this is because an order that has lapsed cannot be extended. The applicant was not shut out from seeking an order for stay execution. The court has discretion to hear and determine the application. I find that he application is properly before this court. 21. Whether the court has discretion to order stay of execution The jurisdiction of the court to order stay of execution is under Order 42 rule 6 of the Civil Procedure Rules which provides as follows: “ (1)No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside. (2) 22. No order for stay of execution shall be made under subrule (1) unless— (a) the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and (b) such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant. (3) Notwithstanding anything contained in subrule (2), the court shall have power, without formal application made, to order upon such terms as it may deem fit a stay of execution pending the hearing of a formal application. (4) For the purposes of this rule an appeal to the Court of Appeal shall be deemed to have been filed when under the Rules of that Court notice of appeal has been given. (5) An application for stay of execution may be made informally immediately following the delivery of judgment or ruling. (6) Notwithstanding anything contained in subrule (1) of this rule the High Court shall have power in the exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it thinks just provided the procedure for instituting an appeal from a subordinate court or tribunal has been complied with.” The Judge considered the application and ordered a stay of execution ex parte. This means that the Judge was satisfied that the applicant should have an opportunity to have the appeal heard and https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19509/eng@2025-11-11 4

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determined. Granting an order for stay of execution is a matter of exercise of discretion on sufficient cause being shown by the applicant. He applicant has to show that he is likely to suffer substantial loss unless the order is made. 23. That the application has been made without unreasonable delay and, such security as the court may order for the due performance of the decree or order as may ultimately be binding on the applicant has been given. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory. 24. The appellant stated that they have already deposited a sum of Kshs. 5,000,000/= and a motor vehicle was attached. He applicant has demonstrated that he is likely to suffer substantial loss as he has deposited the security. It has been held that execution of a decree is a lawful process and the applicant must show that other factors exist for the court to exercise discretion in his favour. 25. In Silverstein -vs- Cheson (2002) 1 KLR 867 the court emphasized the centrally of substantial loss and stated that: “ the issue of substantial loss is the cover-stone of both jurisdictions. Security and a vehicle were attached. The fact that the respondent has already started the process of execution shows that the appeal may be rendered nugatory. The right to appeal is a constitutional right and actualizes the right to access to justice protection and benefit of the court.” The overriding objectives under Section 1A & 1A of the Civil Procedure Rules gives the court discretion to consider the principles of proportionate, affordability and expeditious disposal of cases. For fairness and proportionality in the overriding objectives, the court should guard against rendering an appeal nugatory and impeding the right of appeal. 26. On security, the appellant has deposited security as ordered by the court though belatedly. At this stage the issue of security does not arise as the court ordered security as provided under Order 42 rule (6)(2) (b) Civil Procedure Rules. The appellant needs only to fully comply with the order. 27. On whether there was undue delay, the application was brought timeously and so the issue does not arise. For these reasons I find that the application is properly before this court. The discretion of this court was not fettered by the fact that the order previously issued had lapsed. The issue of sitting on appeal on my sister’s orders does not arise. 28. The application has merits. I order that there shall be stay of execution pending the hearing and determination of the appeal. The appellant shall provide security as ordered by the court and the security provided be deemed as properly deposited. The attached Motor Vehicle KBJ 351MZE 0054 Mercedes Actros MP1 with a trailer be released to the applicant. DATED, SIGNED AND DELIVERED AT MAKUENI THIS 11TH DAY OF NOVEMBER 2025 HON. LADY JUSTICE L. GITARI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19509/eng@2025-11-11 5

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