Dmm v Swm

He maintains that the failure to attend court was not deliberate and should not be visited upon the Appellant. 4. The deponent further avers that he had complied with the court’s directions, including service upon the Respondent and filing of a certificate of service, and that at the time, the Respondent had neither filed a response nor entered appearance. He contends that he has always been ready and willing to prosecute the matter and that the application was filed promptly and in good faith. He further asserts that reinstatement of the interim orders would not occasion prejudice to the Respondent. 5. It is additionally deponed that unless the interim orders are reinstated, the Appellant risks arrest and committal to civil jail, which would adversely affect the welfare and best interests of the minors who depend on both parents. The deponent expressed the view that it is in the interests of justice that the application be heard urgently and that the interim orders be reinstated pending determination of the matter. 6. The Respondent opposed the Application through her replying affidavit sworn on 7th October 2025 wherein she deposes that the Appellant’s application is misleading, unmeritorious, and intended to evade parental responsibility. She states that the Appellant has failed to meet his obligations to pay school fees, school-related expenses, and medical costs for the minors, contrary to the terms of the Mediation Settlement Agreement dated 13th January 2021, which placed those responsibilities upon him. 7. The Respondent avers that the Appellant has persistently defaulted in complying with court orders, thereby compelling her to initiate enforcement proceedings, including a Notice to Show Cause dated 17th August 2021 for Kshs. 76,000/=. She explains that warrants of arrest were issued following the Appellant’s failure to pay the amount ordered by the court and that subsequent applications by the Appellant to set aside those warrants were dismissed. She further states that the Appellant has a history of filing multiple applications and appeals, including HCFA E034 of 2023, all aimed at avoiding compliance with lawful orders. 8. It is further deponed that upon reconciliation of accounts before the trial court, the outstanding amount was adjusted to Kshs. 114,247/= by an order issued on 21st May 2025, which the Appellant was directed to pay in instalments. The Respondent maintains that this amount was agreed upon in court and that the Appellant has continued to be in default. She also notes that interim stay orders previously granted were limited in duration and were later discharged, with the court finding that the Appellant was abusing the court process. 9. The Respondent concludes that the present application is res judicata, constitutes an abuse of the court process, and is contrary to the best interests of the minors, who remain at risk due to lack of financial support. She asserts that enforcement measures, including warrants of arrest, are justified in light of the Appellant’s persistent non-compliance with court orders, and prays that the application be dismissed with costs. 10. The Application was canvassed by way of written submission which I have considered. 11. The dispute herein arises from parental obligations governed by a Mediation Settlement Agreement dated 13th January 2021, under which the Appellant assumed responsibility for school fees, schoolrelated expenses, and medical costs for the minors. 12. This court must, from the outset, state that this is a matter which should have been filed before the Family Division of the High Court. However, owing to the nature of the case, as a matter involving the welfare of the young children, the court will determine the application in the interest of justice and expeditious disposal of children’s matters. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5742/eng@2026-04-30 2

page 2 of 5

Issues for Determination 13. The Court distils the following issues for determination: a. Whether the present application is res judicata; b. Whether the application constitutes an abuse of the court process; c. Whether the Appellant has satisfied the conditions for stay of execution under Order 42 Rule 6; and d. Whether granting the orders sought would be in the best interests of the minors. Analysis and Determination 14. The following facts were not disputed: i. That a Notice to Show Cause dated 17th August 2021 was issued for recovery of Kshs. 76,000/ =; ii. That warrants of arrest were subsequently issued following default; iii. That several applications by the Appellant to set aside the warrants were dismissed; iv. That an appeal (HCFA E034 of 2023) was dismissed; v. That the trial court, upon reconciliation of accounts, issued orders on 21st May 2025 directing payment of Kshs. 114,247/= in instalments; and vi. That the Appellant has filed multiple applications seeking to stay execution of the warrants. Res Judicata 15. The doctrine of res judicata is a fundamental principle of law that bars courts from adjudicating upon matters that have already been conclusively determined by a competent court. The doctrine is codified under Section 7 of the Civil Procedure Act (CPA), which provides that no court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they claim, litigating under the same title, in a court competent to try such subsequent suit, and has been heard and finally determined. The purpose of the doctrine is to bring litigation to finality, prevent multiplicity of suits, and protect parties from vexatious proceedings. 16. The elements of res judicata have been judicially settled. In Independent Electoral & Boundaries Commission vs. Maina Kiai & 5 Others [2017] eKLR, the Court of Appeal outlined the essential ingredients as; identity of parties, sameness of the subject matter, sameness of issues directly and substantially in issue, and a final determination by a court of competent jurisdiction. The court emphasized that the doctrine applies not only to issues that were actually litigated but also to those that could have been raised in the earlier proceedings. This broader application ensures that parties do not evade the doctrine by merely reframing their claims. 17. In Kenya Commercial Bank Limited vs. Muiri Coffee Estate Limited & Another [2016] eKLR, the Supreme Court underscored that res judicata is a doctrine of general application grounded in public policy, aimed at achieving finality in litigation. The Court held that the doctrine extends to constitutional and judicial review proceedings, thereby reinforcing its wide applicability. It also https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5742/eng@2026-04-30 3

page 3 of 5

cautioned that courts must guard against litigants who attempt to re-open disputes through clever drafting or by instituting parallel proceedings. 18. Similarly, in E.T vs. Attorney General & Another [2012] eKLR, the High Court reiterated that res judicata serves to protect the integrity of the judicial process by preventing abuse of court procedures. The Court noted that where a matter has been finally determined, parties are estopped from relitigating the same issues, even under a different guise. Accordingly, once the elements under Section 7 CPA are satisfied, a court is obligated to decline jurisdiction, as proceeding further would amount to an abuse of the court process. 19. From the record, the Court notes that the Appellant previously filed applications seeking to set aside warrants of arrest and that similar issues were canvassed in the Children’s Court and on appeal in HCFA E034 of 2023, which was dismissed. The present application once again seeks to stay execution of warrants arising from the same Notice to Show Cause. 20. I find that the issues raised herein substantially mirror the issues that were previously determined and that the Appellant has not demonstrated the existence of new and distinct matters warranting relitigation. It is therefore my finding that the application is res judicata. 21. The record reveals a pattern of repeated similar applications and appeals by the Appellant challenging enforcement of maintenance orders and that enforcement measures have been repeatedly challenged without compliance with existing orders. The court notes that the timing and nature of the applications suggest an intention to delay enforcement. 22. It is trite that litigation must come to an end. For this reason, the Court cannot countenance repeated applications aimed at frustrating lawful orders. It is this court’s view that the instant application constitutes an abuse of the court process. Stay of Execution 23. Under Order 42 Rule 6 of the Civil Procedure Rules (CPR), an applicant for stay of execution must demonstrate substantial loss, that the application has been made without unreasonable delay and that he is ready to provide security for the due performance of the decree. 24. In the present case, the Appellant argues that his arrest and incarceration would prejudice the minors. The court however notes that the warrants of arrest arise from failure to comply with lawful maintenance orders and that the Appellant has not demonstrated inability to comply, but rather a pattern of non-compliance. My view is that the Appellant’s alleged hardship is self-induced. 25. In the circumstances of this case, I am not persuaded that lawful enforcement of a court order can constitute substantial loss within the meaning of the law. I find that the Appellant has not met the threshold for grant of stay of execution. Best Interests of the Minors 26. Article 53(2) of the Constitution provides that the best interests of the child are of paramount importance. 27. It cannot be gainsaid that the minors herein are entitled to education, medical care, and general welfare. The Respondent has borne the burden of these obligations due to the Appellant’s default. I find that staying the execution would have the effect of delaying enforcement of obligations essential to the minors’ welfare. The Court is not persuaded that shielding the Appellant from lawful enforcement https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5742/eng@2026-04-30 4

page 4 of 5

serves the minors’ best interests as granting the orders sought would be contrary to the best interests of the minors. 28. Having noted that the subject matter of this dispute concerns custody, maintenance, and welfare of minors, which fall squarely within the purview of the Family Division of the High Court, I find that it is appropriate that the matter be handled within that specialized division for the proper and expeditious administration of justice. 29. In sum, and having regard to the findings and observations that I have made in this ruling, I find that the application lacks merit and I therefore make the following final orders: a. The Appellant’s Notice of Motion dated 11th July 2025 and application dated 31st July 2025 are hereby dismissed in their entirety. b. The orders of the trial court issued on 21st May 2025 remain in force. c. The warrants of arrest issued in enforcement of the Notice to Show Cause shall remain valid and enforceable in accordance with the law. d. The Appellant is hereby directed to comply with all maintenance obligations as ordered by the trial court without further delay. e. This matter shall be placed before the Family Division of the High Court for further directions and for purposes of hearing and determining the appeal. f. The appeal shall proceed on a priority basis. g. Costs of the application shall abide the outcome of the appeal. It is so ordered. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 30TH DAY OF APRIL 2026. HON W. A. OKWANY JUDGE In the presence of Wamuti for Applicant Ms Muigai for Respondent Abdirzak - Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5742/eng@2026-04-30 5

page 5 of 5