Nashon Kembero Mogonchi v Evans Ondieki Ombiro

ii. That proceedings in Ogembo Civil Case No. E049 of 2024 are frivolous, vexatious or harassing considering that the Respondent is re-litigating this matter in a subordinate court when it had been raised, heard and determined by this Honourable Court vide the judgement entered on 21.5.2024. iii. That a grave injustice will result unless proceedings in Ogembo Civil Case No. E049 of 2024 are stayed forthwith to forestall a miscarriage of justice whereby the subordinate court will be sitting on an appeal or review of a matter that was dealt with satisfactorily and conclusively by this Honourable Court vide a judgement in Kisii Criminal Appeal No. HCCRA/E020/2022. iv. That the trial court in Ogembo Civil Case No. E049 of 2024, 2024 has in three consecutive rulings delivered on 27.11.2024, 30.1.2025 and 29.4.2025 conspicuously blushed-off the fact that the judgement in Ogembo Criminal case No. E635 OF 2021 was the subject of appeal in Kisii High Court Criminal Appeal No. HCCRA/E020/2022. v. That the trial court in Ogembo Civil Case No. E049 of 2024 has in the three rulings conspicuously blushed-off the fact that ODPP had substantially and directly brought up a request for restitution vide ODPP submissions dated 27.4.2023 in opposition to Kisii High Court Criminal Appeal No. HCCRA/ E020/2022. vi. That the trial court in Ogembo Civil Case No. E049 of 2024 has in the three consecutive rulings conspicuously blushed-off a judgement in Kisii Criminal Appeal No. HCCRA/E020/2022 that was entered by this Honourable Court on 21.5.2024 which satisfactorily and conclusively settled the claim in Ogembo Civil Case No. E049 of 2024. vii. That the Respondent will not suffer prejudice and injustice if proceedings in Ogembo Civil Case No. E049 of 2024 are stayed considering the fact that this application and appeal have been filed promptly/without undue delay. viii. That a miscarriage of justice is abound in trial court in Ogembo Civil Case No. E049 of 2024 by the failure to determine whether the suit is res judicata on account of the fact that ODPP substantially and directly brought up a request for restitution as a point of attack and defence in opposition of the Kisii Criminal Appeal No. HCCRA/E020/2022 vide the ODPP submissions dated 27.4.2023 and the court dealt with the matter satisfactorily and conclusively vide the judgement entered on 21.5.2024. ix. That it’s in the interest of justice to stay proceedings pending determination whether the suit is statute barred on the doctrine of res judicata under Section 7 of the Civil Procedure Act, CAP. 21 on account of the consequential orders in the judgement of this Honourable Court in Kisii Criminal Appeal No. HCCRA/E020/2022 dated 21.5.2024. x. That the Appeal herein will be rendered nugatory unless proceedings in Ogembo Civil Case No. E049 of 2024 are stayed considering that the court gave unequivocal orders for expedited hearing and disposal of the suit after the pretrial conference on 15.5.2025. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19724/eng@2025-10-29 2

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xi. That the Appellant/Applicant is reasonably apprehensive that unless proceedings in Ogembo Civil Case No. E049 of 2024 are stayed, a final judgement and decree will be entered to the detriment of his constitutional right. xii. That the interest of justice dictates that Ogembo Civil Case No. E049 of 2024 be stayed to pave way for hearing and determination of the substantive issues of law and fact which have been raised in the Memorandum of Appeal on merit before proceedings, if any, would commence, otherwise, the Appellant/ Applicant stands to suffer unfathomable prejudice and injustice. 2. The applicant submitted that the lower Court suit is resjudicata under Section 7 as he was charged in Ogembo Criminal Case No. E635 of 2021 and he was convicted and he appealed and the convicted and sentence were upheld. Also, that the respondent filed civil suit no. 20 of 2024 seeking compensation in the sum of Kshs. KSh 68,860/ = on the basis of the Judgement in Ogembo Criminal Case No. E635 of 2021 as per the plaint Plaint Attached and marked Exhibit NIC-OOI). 3. Also that he raised a preliminary objection dated 3.6.24 on the ground that the suit is res judicata under Section 7 of the Civil Procedure Act as this court has conclusively dealt with the matter in HCRA no. E020 of 2024. The preliminary objection was overruled and hence the appeal. He faulted the learned trial Magistrate for failing to consider that the suit is resjudicata. He submitted that the Courts have laid down principles to be considered in exercising its discretion to grant an order for stay of proceedings and cited the case of Access Bank Kenya PLC v Mengich & another (Civil Appeal E003 of 2024) 2024 KEHC 5682 (KLRI, the Court enunciated the following 6. principles: a) First, there must be an appeal pending before the higher Court; b) Second, where such stay is sought in the Court hearing the case as opposed to the higher Court to which the Appeal has been filed and there is no express provision of the law allowing for such an application, the Applicant should explain why the stay has not been sought in the higher Court, This is because, due to the potential of an application for stay of proceedings to inordinately delay trial, there is a policy in favour of applications for stay being handled in the Court to which an appeal is preferred because such a Court is familiar with its docket and is therefore in a position to calibrate any order it gives accordingly; c. Third, the Applicant must demonstrate that the appeal raises substantial questions to be determined or is otherwise arguable; d. Fourth, the Applicant must demonstrate that the Appeal would be rendered nugatory if the stay of proceedings is not granted; e. Fifth, the Applicant must demonstrate that there are exceptional circumstances which make the stay of proceedings warranted as opposed to having the case concluded and all arising grievances taken up on a single appeal; and f) Sixth, the Applicant must demonstrate that the application for stay was filed expeditiously and without delay. He urged this court to find his favour and exercise its discretion to stay proceedings in Ogembo Civil Case No, E049 of 2024 pending hearing and determination of the appeal. 4. The respondent filed a replying affidavit dated 5. 6.25 in which he stated that he is advised by his advocates on record that it was within his right to file the suit for recovery of damages and that the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19724/eng@2025-10-29 3

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learned trial magistrate considered the issue of Resjudicata in his impugned ruling. The respondent said that the applicant is out to delay hearing of the civil suit he filed. 5. I have considered the application the response and the submissions in the case of Global Tours &Travels Limited; Nairobi HC Winding Up Cause No. 43 of 2000 persuasively stated thus; “ As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of Justice .... the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously” (emphasis added) (5) See also illumination on the threshold for stay of proceedings in the following passages in Halsbury’s Law of England, 4th Edition. Vol. 37 page 330 and 332, that: “The stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantive merits of his case, and therefore the court’s general practice is that a stay of proceedings should not be imposed unless the proceeding beyond all reasonable doubt ought not to be allowed to continue.” “This is a power which, it has been emphasized, ought to be exercised sparingly, and only in exceptional cases.” “It will be exercised where the proceedings are shown to be frivolous, vexatious or harassing or to be manifestly groundless or in which there is clearly no cause of action in law or in equity. The applicant for a stay on this ground must show not merely that the plaintiff might not, or probably would not, succeed but that he could not possibly succeed on the basis of the pleading and the facts of the case.” 6. It is thus clear that in dealing with an application for stay pf proceedings the court must consider; a. Whether an appeal has been filed in a higher court. b. Whether the application for stay has been filed in the higher court. c. Whether the appeal raises arguable issues. d. Whether the Applicant had demonstrated that the Appeal would be rendered nugatory if the stay of proceedings is not granted. e. Whether the Applicant has demonstrated that there are exceptional circumstances to warrant stay of proceedings. f. Whether the Applicant has demonstrated that the application for stay was filed expeditiously and without delay. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19724/eng@2025-10-29 4

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7. In the instant case it is clear that an appeal has been filed in this court against the impugned ruling by the Magistrate’s court and that this is a superior court to the said lower court. 8. On whether the appeal raises arguable issues, the appeal raises the issue of Res judicata which is a point of law and which is thus arguable. 9. On whether the appeal would be rendered nugatory unless the stay orders are granted. The applicant said that the appeal will be rendered nugatory unless the stay is granted. It has emerged that the case sought to be stayed is pending hearing. Both the applicant and respondent have a right to be heard expeditiously on both cases under Article 159 (2) (b) of the Constitution. This court thus has to balance the two rights. The applicant has decried overruling of his preliminary objection on Res judicata by the trail court. However, that is the main ground of appeal which cannot be determined at this stage as it will dispose of the appeal. The fact that a case is about to be heard by itself pending interlocutory appeal cannot render the appeal nugatory. The applicant has a duty to establish more than the fact that the case is about to be heard in the lower court It has not been established that the appeal will be rendered nugatory unless stay of proceedings is granted. 10. On whether there are exceptional circumstances to warrant stay of proceedings, its trite law that stay of proceedings is discretional and the discretion must be exercised judiciously and sparingly where it is shown that the proceedings are frivolous vexatious oppressive, a clear abuse of the process of the court, harassing or that there is no reasonable cause of action. It suffices to state at this point that no exceptional circumstances have been established to warrant stay of proceedings. 11. On whether the application was filed without delay, the ruling was delivered on 29.4.25 and the application was filed on 4.5.25. That was about 4 days after the ruling and thus there was no delay in filing the application. 12. In the upshot, I find that the application is devoid of merit and I proceed to dismiss it with costs to the respondent. T.A ODERA JUDGE 29.10.25 DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 29TH DAY OF OCTOBER 2025 IN THE PRESENCE OF: CA Kipchirchir https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19724/eng@2025-10-29 5

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