https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1493

Quandt v Shepard & 3 others (Civil Appeal E173 of 2021) [2026] KECA 1493 (KLR) (24 July 2026) (Judgment) Neutral citation: [2026] KECA 1493 (KLR) Republic of Kenya In the Court of Appeal at Eldoret Civil Appeal E173 of 2021 PM Gachoka, WK Korir & L Ndolo, JJA July 24, 2026 Between Jurgen Richard Quandt Appellant and Cindy Terry Shepard 1st Respondent Ken Tedayo 2nd Respondent Margaret Jebet Lagat alias Maggy Jebet 3rd Respondent Jonanne Chepkelion 4th Respondent (Being an Appeal from the Ruling of the High Court at Eldoret (Githinji, J.) dated 9th October 2019 in HCCA No. 35 of 2018 Civil Appeal 35 of 2018 ) Judgment 1.This is an appeal against the ruling of the High Court (Githinji, J.) delivered on 9th October 2019 in Eldoret HCCA No. 35 of 2018. Through the ruling, the learned Judge dismissed the appellant's application for stay of execution pending appeal. The application had been filed in the High Court following a judgment of the Chief Magistrate's Court in Eldoret Succession Cause No. 26 of 2017, which distributed the estate of the late Achim Huberitus Quandt alias Ahim Heberitus Quandt (the deceased), who died intestate on 22nd August 2015. 2.The brief background to the dispute is that at the Chief Magistrate’s Court, the appellant, who claimed to be the deceased's only surviving brother, had petitioned for letters of administration intestate. The respondents filed objections to the issuance of the grant, claiming beneficial interests in the estate. After hearing viva voce evidence, the trial magistrate (Hon. E. Kigen, RM) delivered judgment on 16th March 2018, distributing the estate to the appellant and the respondents. Aggrieved by the subordinate court's judgment, the appellant moved to the High Court, and on 17th September 2018 filed a Notice of Motion anchored on Order 42 rule 6 of the Civil Procedure Rules seeking an order staying the execution of the subordinate court's decree pending the hearing and determination of his appeal. In a ruling delivered on 9th October 2019, Githinji, J. dismissed the appellant's application on the grounds that the application was res judicata and the appellant did not satisfy the conditions for the grant of an order of stay. 3.It is the decision of the High Court that has aggrieved the appellant, who is now before the Court challenging the learned Judge’s findings of res judicata and that the appellant did not satisfy the conditions for the issuance of an order staying execution pending the hearing of his appeal. 4.We heard the appeal through the virtual platform on 25th May 2026 when learned counsel Ms. Wahome appeared holding brief for Ms. Odwa for the appellant. There was no appearance for the respondents despite service of the hearing notice. Nevertheless, the 3rd and 4th respondents had filed submissions. Ms. Wahome opted to rely on the submissions filed on 22nd May 2026. 5.In support of the appeal, counsel for the appellant argued that the learned Judge erred in law by holding that the application dated 17th September 2018 was res judicata on the basis that a similar application had been heard and dismissed by the subordinate court. Counsel submitted that Order 42 Rule 6(1) of the Civil Procedure Rules expressly provides that an appellate court may consider an application for stay of execution, irrespective of whether a similar application was granted or refused by the court appealed from. Counsel maintained that the High Court exercises original jurisdiction when hearing an application for stay of execution pending appeal, and that the jurisdiction is akin to that exercised by this Court under rule 5(2)(b) of the Court of Appeal Rules, 2022. To buttress this argument, counsel referred to the cases of Equity Bank Limited vs. West Link Mbo Limited [2013] eKLR and Githunguri vs. Jimba Credit Co-operation [1988] KLR 838 to submit that under the "original jurisdiction" doctrine, even if a similar application has been heard and rejected by the High Court, the Court of Appeal deals with a fresh application as a court of first instance. As regards the merits of the application for stay, counsel asserted that substantial loss was demonstrated, as the estate was under threat of being wasted, and that security was not required because the land which was the subject matter of the appeal constituted sufficient security. It was counsel’s ultimate submission that the appeal be allowed, the ruling of the learned Judge be set aside, and an order for stay of execution be granted. 6.The 1st and 2nd respondents did not file any submissions in this appeal. 7.Through submissions dated 21st May 2026 filed by the law firm of Rioba Omboto & Co. Advocates, it is submitted for the 3rd and 4th respondents that the learned Judge properly exercised his discretion in dismissing the application for stay because the appellant had failed to satisfy the mandatory conditions under Order 42 Rule 6(2) of the Civil Procedure Rules. On the issue of substantial loss, counsel submitted that the appellant's allegation that he would suffer substantial loss was a bare assertion unsupported by evidence. Counsel referred to Kenya Shell Ltd vs. Benjamin Karuga Kibiru & Another [1986] KLR 410, where it was held that substantial loss must be specifically proved and cannot be based on mere allegation. In support of the learned Judge’s finding that the application was brought after unreasonable delay, counsel pointed out that the subordinate court's judgment was delivered on 16th March 2018, but the application for stay was not filed until 17th September 2018, a period of about six months, and that no satisfactory explanation was given for this delay. On the question of security, counsel argued that the appellant had not offered any concrete security for due performance of the decree and that the mere assertion that the land in the estate constituted sufficient security was vague and unsupported by evidence. Counsel further asserted that the learned Judge was correct in holding that the application was res judicata because a similar application had been heard and dismissed by the subordinate court, and the appellant should have appealed that decision instead of filing a fresh application in the High Court. It was counsel’s ultimate prayer that the appeal be dismissed with costs. 8.This is a first appeal, and we have a duty to re-evaluate the record and draw our own conclusions. We are further aware that this appeal arises from the exercise of discretion by the learned Judge, and as held by the Supreme Court in Kibira vs. Independent Electoral & Boundaries Commission & 2 Others [2019] KESC 62 (KLR), an appellate court may only interfere with the exercise of discretion by the court below where the decision is based on a whim, is prejudicial, or is capricious, or where the trial court erred in law or principle, took into account irrelevant considerations, failed to take into account a relevant consideration, or the decision is plainly wrong. In the cited authority, the Supreme Court further expressed the manner of exercising discretion as follows:“It is also the law that discretionary power is to be exercised in a manner that is not capricious or whimsical, and that judicial officers to whom this power is donated should exercise the same judiciously. That is why, and we agree, with Stanley Kang’ethe Kinyanjui vs. Toney Ketter & 2 others Civil Application No Nai 31 of 2012, where it was stated that a responsibility is bestowed upon Courts to ensure that the exercise of the discretionary powers donated to them is not exercised in any manner that would prejudice any party coming before it.” 9.On its part, this Court in Philip Keipto Chemwolo & Another vs. Augustine Kubende [1986] KECA 87 (KLR) reiterated the boundaries of its appellate powers with respect to the exercise of discretion as follows:“At the same time this Court will not lightly interfere with the discretion of the trial judge unless it is satisfied that he misdirected himself in some matter, and as a result arrived at a wrong decision, or unless it is manifest on the case as a whole that the judge was clearly wrong in the exercise of his discretion, and that as a result there has been a miscarriage of justice.” 10.The foregoing principles shall guide our discourse in this appeal.Having considered the record of appeal, the rival submissions, and the authorities cited, the following issues arise for determination: whether the appellant's application for stay of execution was res judicata and whether the learned Judge properly exercised his discretion in finding that the appellant had failed to satisfy the conditions for grant of stay under Order 42 Rule 6 of the Civil Procedure Rules. We will also address the issue as to who should bear the costs of this appeal. 11.The first issue we address is the finding by the learned Judge that the motion by the appellant was res judicata. The principle of res judicata is codified in section 7 of the Civil Procedure Act. It bars re-litigation of issues that have directly and substantially been in issue between the same parties or their surrogates in a former suit and have been determined by a competent court. The rationale of the doctrine is to ensure finality in litigation and prevent parties from subjecting their opponents to repeated adjudication of the same matters. This rationale was restated by this Court in John Florence Maritime Services Limited & Another vs. Cabinet Secretary for Transport and Infrastructure & 3 Others [2015] KECA 472 (KLR) thus:“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. They can hardly spare time to repeat themselves on issues already decided upon. It promotes stability of judgments by reducing the possibility of inconsistency in judgments of concurrent courts. It promotes confidence in the courts and predictability which is one of the essential ingredients in maintaining respect for justice and the rule of law. Without res judicata, the very essence of the rule of law would be in danger of unraveling uncontrollably. In a nutshell, res judicata being a fundamental principle of law may be raised as a valid defence.” 12.However, res judicata does not operate to bar an application for stay of execution pending appeal where the appellate court is expressly empowered to consider such an application afresh, regardless of any previous determination by the lower court. The appellant’s motion before the High Court was anchored on Order 42 Rule 6 of the Civil Procedure Rules. Sub-rule (1) of rule 6 provides:“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.” 13.The plain and unambiguous language of this provision gives the appellate court independent jurisdiction to entertain an application for stay of execution, irrespective of whether a similar application was granted or refused by the court whose decision is the subject of the appeal or intended appeal. The provision was deliberately crafted to avoid the technicality of res judicata and to ensure that a party who has lodged an appeal has a second chance to seek interim relief from the appellate court. The jurisdiction is similar to that granted to this Court by rule 5(2)(b) of the Court of Appeal Rules. Thus, in Equity Bank Limited vs. West Link Mbo Limited (supra) the jurisdiction was expressed as follows:“[13]It is trite law that in dealing with 5(2)(b) applications the Court exercises discretion as a court of first instance and even where a similar application has been made in the High Court or other similar court under Rule 6(1) of order 42 C.P. Rules and refused, the Court in dealing with a fresh application still exercises an original independent discretion as opposed to appellate jurisdiction (Githunguri Versus Jimba Credit Corporation Ltd. (No. 2) [1988] KLR 838).” 14.Similarly, in Girbux Singh Suri & Another vs. Royal Credit Limited [1995] KECA 123 (KLR) it was held by this Court that:“In ordinary circumstances the Court has only appellate jurisdiction and in the absence of Rule 5(2)(b) a party who has been refused a stay of execution or an injunction by the High Court would have been obliged to apply to the Court of Appeal to set aside the refusal and then having done so, to grant the stay or injunction. That is what is contemplated in Order 41 Rule 4(1) of the Civil Procedure Rules. But because of the existence of Rule 5(2)(b) one does not have to apply to the Court to first set aside the refusal by the High Court and then having set aside the High Court order to grant one itself. That clearly is the sense in which the expression "independent original jurisdiction" is to be understood and that was made abundantly clear in the Githunguri case, supra, by use of expressions such as "we have to apply our minds de novo" or "It is not an appeal from the learned Judge's discretion to ours." …An application for stay of execution or for an injunction or for stay of further proceedings can be made both to the High Court and to the Court of Appeal…There is nothing inconsistent or contradictory in this Court exercising its own independent original jurisdiction after the High Court has had a go at and refused whatever it was asked to grant.” 15.The same principle applies to the High Court when exercising its appellate jurisdiction under Order 42 Rule 6. The High Court, as an appellate court, is at liberty to consider an application for stay afresh, applying its mind de novo to the propriety of granting the relief. This jurisdiction is not an appeal against the lower court's refusal, but an independent exercise of discretion. Therefore, the learned Judge's finding that “this court being an appellate court, the applicant should have filed a fresh appeal rather than a fresh application” was, with respect, a misapprehension of the law, thus calling for our intervention. Order 42 Rule 6 does not require an appellant to first appeal against the lower court's refusal of a stay. To the contrary, it expressly permits the High Court to consider the application anew. Requiring a party to appeal against the refusal of an order of stay of execution before filing a fresh application would lead to unnecessary delay, contrary to the overriding objective of the Civil Procedure Act and the constitutional imperative of expeditious justice under Article 159(2)(b) of the Constitution. We therefore find that the learned Judge erred in finding that the appellant’s application for stay was res judicata. 16.Had the learned Judge dismissed the application solely on the ground that it was res judicata, we would have stopped at this point and allowed the appeal. However, the learned Judge proceeded to consider whether the appellant had met the conditions for the grant of an order of stay. Therefore, the next issue we address is whether the learned Judge properly exercised his discretion in finding that the appellant did not satisfy the conditions for grant of stay under Order 42 Rule 6 of the Civil Procedure Rules. 17.Order 42 Rule 6(2) sets out three conditions that must be met prior to the grant of an order of stay of execution: demonstration that substantial loss will be suffered; need to bring application without unreasonable delay; and provision of security. In his ruling, the learned Judge found that the appellant had not satisfied any of these conditions. We must therefore determine whether his conclusion was justified. 18.We start by once more appreciating the principles governing appellate interference with the exercise of discretion by a trial court. These principles are well settled, and as was stated in Mbogo & Another vs. Shah [1968] EA 93, an appellate court will not interfere with the exercise of discretion by a lower court unless it is shown that the trial court misdirected itself in law, took into account irrelevant considerations, failed to take into account relevant considerations, or the decision is so plainly wrong that the trial court must have misdirected itself. 19.On our part, we do not find any misdirection by the learned Judge to warrant our interference with his discretion in determining the application for stay. The learned Judge carefully considered all the relevant factors. On whether the appellant had demonstrated that he would suffer substantial loss should the judgment be executed, the learned Judge found that the appellant had merely stated he would suffer substantial loss without any evidence. As to whether the appellant had filed the application without unreasonable delay, the learned Judge found that the application was brought six months after the decision sought to be stayed was delivered by the High Court without any explanation being offered for the delay. On the requirement for provision of security, the learned Judge held that although the appellant had stated that the remainder of the estate of the deceased was sufficient security, he had not shown the size of the remainder of the estate. The learned Judge therefore found against the appellant on all the ingredients. These findings were supported by the evidence on record. It cannot therefore be said that there was a misdirection in law, a consideration of irrelevant factors, or failure to consider relevant factors. Additionally, the decision was not so plainly wrong as to warrant interference. We are therefore satisfied that the learned Judge correctly exercised his discretion in dismissing the appellant's application for stay of execution of the magistrate’s judgment. 20.Considering our findings hereinabove, it follows that this appeal partially succeeds only to the extent that the learned Judge erred in finding that the appellant’s application was res judicata. However, this finding does not upset the learned Judge’s determination that an order of stay was not merited. Consequently, this aspect of the appeal fails and is dismissed. 21.Turning to the issue of costs, we note that this appeal arises from a succession matter. It is also not lost on us that the appellant has partially succeeded even though the win is nothing but a pyrrhic victory. In the circumstances, the appropriate order on costs is to direct the parties to meet their own costs of the appeal, which we hereby do. 22.It is so ordered. DATED AND DELIVERED AT ELDORET THIS 24TH DAY OF JULY 2026.M. GACHOKA C.Arb, FCIArbJUDGE OF APPEAL......................................W. KORIRJUDGE OF APPEAL......................................L. M. NDOLOJUDGE OF APPEALI certify that this is a True copy of the originalSignedDEPUTY REGISTRAR