https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9167

Kimani v Bisengi (Civil Appeal E083 of 2025) [2026] KEHC 9167 (KLR) (26 June 2026) (Ruling) Neutral citation: [2026] KEHC 9167 (KLR) Republic of Kenya In the High Court at Makueni Civil Appeal E083 of 2025 RA Oganyo, J June 26, 2026 Between Hellen Wanjiru Kimani Appellant and Harrison Michieka Bisengi Respondent (Being an appeal from the ruling of Hon. P.M GESORA., CM dated 4TH September, 2025 at the Magistrates Court at Makueni in Civil Case No. E170 OF 2021) Ruling 1.This appeal arises out of the decision of Hon. P.M GESORA, Chief Magistrate dated 4th September, 2025 at the Magistrates Court at Makueni. In the trial court, the Respondent had sued the appellant general damages for pain and suffering and loss of amenities, special damages of Kshs. 5,257,485/-, future medical expenses, costs and interest together with any other relief that the court may deem fit to grant. 2.In his Plaint, the plaintiffs in the lower court, Hellen Wanjiru Kimani averred that the accident subject to litigation herein occurred on the 5th January, 2021 when she was travelling as a lawful fare paying passenger aboard MV Registration number KBZ 139P along the Wote -Machakos road at Itumbule area when the Appellant , her agent, authorised driver or servant so carelessly and negligently controlled And/or drove the said Motor vehicle that it lost control , roll several times and caused an accident a result of which the Respondent/Plaintiff suffered injuries, damage and loss of amenities. The Respondent blamed the accident on the Appellant’s negligence which he particularised at paragraph 4 of the plaint. He particularised the injuries he sustained and special damages at paragraph 5 of the plaint and stated that the Appellant was vicariously liable for her driver’s negligence and prayed that judgement be entered in his favour as prayed. 3.The appellant having failed to either enter appearance and file defence, interlocutory judgement was entered against them on 1st December, 2021. The matter then proceeded to formal proof and judgement was entered in favour of the Respondent on 8th June, 2022. The appellant by application dated 26th May, 2025 approached the trial court seeking leave to enter appearance and file defence, to stay execution of and ultimately set aside the judgement entered on 8th June, 2022, and finally to have the matter start denovo together with costs of the application. The said application was based on leave to on grounds that the appellant never knew of the existence of the suit in the trial court and that they only became aware of the same in April, 2025 when they were served with the notice to show cause why the decree should not be executed. She said that she was never served with the summons to enter appearance nor the pleadings herein. 4.The application was disposed off by written submissions which the honourable magistrate considered and dismissed the Appellants application. The Appellant dissatisfied with the dismissal appealed to this court on grounds that;a.The trial magistrate erred in law and fact by failing to appreciate that a triable issue not to succeed but that which raises a prima facie defence that ought to be adjudicated at trial.b.That the trial magistrate erred in law and fact by failing to appreciate that the appellant’s right to natural justice had been violated.c.That the trial magistrate erred in law and fact by failing to exercise his judicial discretion in granting the appellant leave to enter appearance and file defenced.That the trial magistrate erred in law and fact by not recognising that the appellant had not been with summons to enter appearance or pleadings in violation of order 5 of the civil procedure rules.e.That the trial erred in failing to recognise that the appellant was not served with the notice of entry of judgement and decree subsequent to the judgement delivered on 8th June, 2022 that prompted the filing of the application dated 26th May, 2025 and subsequent ruling delivered on the 5th September, 2025.f.That the trial magistrate erred in law and fact by failing to evaluate the court documents filed in court thus arriving at a wrong conclusion.g.That the trial magistrate erred in law and fact by failing to recognise that the mistake on the part of an advocate previously on record should not be revisited upon the Appellanth.That the trial magistrate misadvised himself hence failed to appreciate that the appellant only needed to demonstrate that there was a triable issue in the draft application.i.That the Trial Magistrate failed in law and fact in failing to properly appreciate and apply his discretionary powers and principles of setting aside a ruling andj.That the trial Magistrate erred in law and fact by totally disregarding the appellant’s pleadings and submissions thereby arriving at a wrong conclusion. 5.The Appellant sought to have the trial court’s set aside and that the application 26th May, 2025 be allowed and costs of the application be paid by the respondent. 6.The application was dispensed of by written submissions. The rival submissions are dated 11th May, 2026. In her submissions, the appellant argued that the issues for determination are whether the ruling delivered on 5th September 2025 out to be set aside and whether the court can grant leave to the defendant to file a defence. She relied on order 42 rule 6 of the civil procedure rules and argued that the powers of a court to grant stay of execution is discretionary and should be exercised with discretion which should not be exercised in a way that prevents a party from pursuing its appeal and within the confines of the Law as was held in the case of COI & another v Chief Magistrate Ukunda Law Courts & 4 others [2018] eKLR. She further relied on RWW v EKW [2019] eKLR and submitted that the main purpose of stay of execution is to preserve the subject natter while balancing the interests of justice. The Appellant further said that the requirements for impugned judgement was entered on 8th June, 2022 and that the requirements for granting stray of execution were elucidated in the case of Vishram Ravji Halai v Thornton & Turpin [1990] KLR where the court held that the applicant must establish sufficient cause, satisfy substantial loss and furnish security. 7.She relied on James Wangalwa & Another V Agnes Naliaka Cheseto [2012] KEHC 1094 (KLR) and argued that she had demonstrated that she had proved that the intended execution will occasion her substantial loss as she had not defended the suit. On the 2nd issue, the applicant relied on the provisions of order 12 rule 7 and stated that the mistake in filing the defence was occasioned by an oversight and miscommunication between the Defendant’s insurer and the court and stated that the same was neither intentional nor inordinate. She relied on Murai v Oile 2022] KEHC 15585 (KLR) and International Air Transport Association & another v Roskar Travel Limited & 3 others [2022] KEHC 10862 (KLR) where the court of appeal relied on horn PLC vs Macdonald [1999] and highlighted the principles of setting aside a judgement as;i.while the length of any delay by the defendant must be considered, any pre-action delay is irrelevant;ii.any failure by the defendant to provide a good explanation for the delay is a factor to be considered, but is not always a reason to refuse to set aside;iii.the primary considerations are whether there is a defence with a real prospect of success, and that justice should be done; andiv.prejudice (or the absence of it) to the claimant also has to be considered. 8.The appellant concluded that she is likely to suffer irreparable loss and damage as she had not defended the suit in the trial court and stated that she stands to suffer irreparable loss and damage should the orders sought not be granted. She prayed that the appeal be allowed. Respondent’s Submissions 9.On his part, the Respondent submitted that the issues for determination are whether the trial magistrate properly exercised his discretion in dismissing the appellant’s application dated 26th May, 2025, whether the application dated 26th May, 2025 was res judicata, whether the appellant proved lack of service or violation of the rues on natural justice, whether the appellant established sufficient grounds for setting aside the judgement, whether the Appellant’s conduct disentitled her from equitable relief, whether the appeal amounts to abuse of court process and forum shopping and finally whether the appeal ought to be dismissed. 10.The Respondent said that it is trite law that the power to set aside exparte judgement is discretionary and must be exercised judiciously. He relied on Mbogo v Shah [1968] EA and said that an appellate court cannot interfere with such discretion merely because it would have reached a different conclusion. He said that the trial magistrate properly evaluated the entire history of the instant matter and correctly appreciated that the appellant had previously filed a similar application dated 19th August, 2022 which was heard and dismissed on merit on 29th March, 2023. He said that the applicant subsequently filed a civil appeal being Makueni High Court Civil Appeal number E026 of 2023 and obtained conditional stay but failed to comply with the conditions requiring her to deposit the decretal sum in a joint interest earning account within 45 days. The said appeal was ultimately withdrawn by consent of both parties hence it is dishonest of the appellant to mislead the court that she was not aware of the of the proceedings. He said that the instant application is an invitation to this court to improperly substitute the discretion of the subordinate court which ought to be declined. 11.The Respondent continued to submit that the honourable trial magistrate found that the application dated 26th May, 2025 was resjudicata. He relied on Section 7A of the Civil Procedure Act and said that the ingredients of res judicata are that the matter in issue must be directly and substantially on the same issue, that the former suit must have involved the same parties, that the parties must have litigated under the same title and that the issue must have been heard and determined by a competent court. He said that the Appellants application dated 19th August 2022 sought for stay of execution, setting aside the judgement, leave to defend the suit and re-opening of the proceedings. He said that the Applicant even sought the right of appeal before withdrawing the same. He relied on the case of Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others [2017] eKLR where the court of appeal held that;“The rule or doctrine of res judicata serves the salutary aim of bringing finality to litigation and affords parties closure and respite from the spectre of being vexed, haunted and hounded by issues and suits that have already been determined by a competent court” 12.The applicant further relied on John Florence Maritime Services Limited & another v Cabinet Secretary, Transport and Infrastructure & 3 others [2021]eKLR where the supreme court found that ;“The rationale behind res judicata is based on the public interest that there should be an end to litigation coupled with the interest to protect a party from facing repetitive litigation over the same matter. Res judicata ensures the economic use of court’s limited resources and timely termination of cases. Courts are already clogged and overwhelmed” 13.He said that the Appellant cannot continuously file repetitive applications merely by changing advocates and litigation must come to an end. He said that the trail court therefore arrived at a correct finding and as thus the instant appeal ought to be dismissed. 14.The Respondent further accused the appellant of misleading the court by alleging that he wasn’t served with pleading. He said that the Respondent probed via way of affidavit of service that the Appellant was served with Summons to enter appearance, entry of interlocutory judgement, notice of entry of judgement, proclamation notices and that the appellant participated in execution proceedings and instructed several advocates firms in the matter. He said that the Appellants conduct conforms that he was aware of the matter hence the allegation of knowledge of this matter in 2025 is a blatant falsehood. He relied on Shah Vs. Mbogo [1976] EA and submitted that the appellant’s application falls squarely within the category of litigants who deliberately obstruct justice. He said that the Appellant cannot even invoke the constitutional principle of fair hearing while simultaneously abusing court process and concluded that Article 50 of the Constitution cannot be used as a shield for dishonesty and abuse of the court’s process. 15.Submitting on whether the Appellant had established the grounds for setting aside the judgement, the respondent stated that the appellant failed to satisfy the threshold for setting aside a judgement. He said that there was inordinate delay, excessive and inexcusable delay since the judgement was delivered on 14th June, 2022 and the application being appealed against filed on 26th May, 2025 which is almost 3 years. He relied on Utalii Transport Company Limited &3others v Nic Bank Limited & Another [2014] eKLR, and said that the appellant offered any plausible explanation for sleeping on her rights and that she further failed to demonstrate the existence of a plausible defence raising triable issues. He said that the appellant had equally failed to demonstrate any prejudice he would suffer incapable of compensation by damages. He relied on Machira T/A Machira &Co Advoactes Vs. east African Standard [2022] eKLR and submitted that a successful party is entitled to the fruits of his judgement. 16.He said that the Appellant is not entitled to the reliefs sought as a party seeking equity must come to equity with clean hands. He stated that the appellant failed to comply with the conditional orders of stay granted by the high court, obstructed auctioneers during the process of execution by inciting members of the public against the auctioneer, frustrated lawful execution and filed repetitive application through different advocates. He relied in Rose Wambui Njoroge Vs. the Hon. Attorney General [2008] eKLR and submitted that the Appellants hands are hopelessly tainted that she cannot seek the equitable intervention while actively undermining lawful orders and that equity aids the vigilant and not the indolent. He classified the Appellants appeal as an abuse of the court process adding that she had constantly engaged in from shopping by filing repetitive applications and engaging different advocates that is Murimi, Ndumia Mbago advocates, G G &Company Advocates in the initial appeal and J &J company advocates. He relied on Beanja properties Ltd Vs. Syedna Mohamed Burhannudin Sahed &4 Others [2015} eKKLR and submitted that litigation must come to an end. He said that the Appellant had exhausted every available opportunity and the litigation door must finally close. 17.He concluded his submissions by arguing that the Applicant’s appeal is devoid of merit and that the trial magistrate properly appreciated the facts and applied the law. He described the appeal as frivolous, vexatious intended to delay justice and prayed that the appeal be dismissed. Analysis and Determination 18.The application was dispensed by way of written submissions. I have read and considered the application, the rival affidavits and their annextures, the applicable law, submissions and authorities relied on. Having considered the matter before me, I find that it raises two main issues for determination to wit whether the Applicant herein is resjudicata and whether the appellant’s appeal is merited to warrant setting aside the judgement. 19.On whether the Appeal herein is resjudicata; the appellant never alluded to it. The Respondent however informed this court that the Appellant had sought to set aside the trial court’s orders via application dated 19th August, 2022 seeking to set aside the trial court’s interlocutory judgement which was dismissed on merit on 29th March, 2023. The Appellant then appealed the dismissal vide Makueni Civil Appeal number E026 of 2023 which was conditionally allowed on grounds that the Appellant deposit the decretal sum in a joint interest earning account within 45 days. The said order of stay automatically lapsed when the Appellant failed to meet the conditions granted and the Appeal was withdrawn by consent of parties. The Appellant then proceeded to file the application subject to the instant appeal which was equally dismissed. 20.The application herein was argued that the issues raised herein are resjudicata. The law on resjudicata is found at section 7 of the Civil Procedure Act which provides;“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 or any of them claim, litigating 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” 21.Further, the Black’s law Dictionary 10th Edition defines “res judicata” as“An issue that has been definitely settled by judicial decision…the three essentials are (1) an earlier decision on the issue, (2) a final Judgment on the merits and (3) the involvement of same parties, or parties in privity with the original parties…” 22.In North Rift Diaries Ltd v Seahawk General Logistics Ltd & another [2026] (KLR)“The essence of this doctrine is that judicial determinations must be final, binding and conclusive. There must be finality to litigation. This position was affirmed by the Supreme Court decision in John Florence Maritime Services Limited & another v Cabinet Secretary, Transport and Infrastructure & 3 others [supra] and for the plea of res judicata to succeed, the following ingredients must be satisfied;“a. There was a former judgment or order which was final;b.The judgment or order was on merit;c.The judgment or order was rendered by a Court having jurisdiction over the subject matter and the parties; andd.There had to be between the first and the second action identical parties, subject matter and cause of action.” 23.The South African Court in the case of FirstRand Bank Limited v Badenhorst NO & others [2023] ZAGPJHC 779 observed that the doctrine of res judicata is an element of justice that seeks to protect litigants, and the Courts, from repetitive litigation. The court held that; -“In my view, the cause of action must be determined from an assessment of the whole of the case in which the final judgment was delivered. The basic ingredients or the factual basis – the necessary, material, central basic facts - that emerge from such an assessment must be compared against the facts distilled from the subsequent case in which the defence of res judicata is raised. The defence will find application if those facts are the same, and the other requirements are satisfied.” 24.The issue of res judicata arises at two stages in the instant proceedings: first at the trial court level and subsequently on appeal. I have perused the trial court file and note that an application dated 19th August 2022 was heard and determined vide a ruling dated 29th March 2023. The Appellant thereafter filed an application dated 26th May 2025, in which she sought the same orders as those that had been dismissed by the court. The said application was dismissed on grounds of res judicata. The court was also informed of an appeal against the ruling delivered on 29th March 2023, being Makueni Civil Appeal No. E026 of 2023 between the parties herein. It is no rocket science that the issues raised in the present application have already been determined by the court in Makueni Civil Appeal No. E026 of 2023. The trail magistrate therefore correctly applied himself on facts and law in finding that the application before him was resjudicata. The instant application is equally resjudicata as the same had been determined Makueni Civil Appeal No. E026 of 2023 hence this appeal is equally res judicata. 24.Having found that the matter is res judicata, this court has no reason to consider the other issue for determination. I consequently dismiss the instant appeal on grounds that it is res judicata. 25.On costs, it is trite law that costs follow the event. The Appeal having been dismissed, the Respondents shall get costs of the appeal.It is so ordered.Right of appeal 30 days. DATED, SIGNED AND DELIVERED VIA TEAMS AT NAIROBI, THIS 26TH DAY OF JUNE, 2026.………………….….ROSELINE OGANYOJUDGEIn the presence of: -Court Assistant…E, SanaCounsel for the Appellants…...No Appearance by J & J AdvocatesCounsel for the Respondent…. Mr. Wekesa h/b for Mr. Nthiwa for the Respondent.