https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11167

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT VIHIGA** **CIVIL APPEAL NO E046 OF 2024** **KENYA POWER AND LIGHTING COMPANY LIMITED .................APPELLANT** **VERSUS** **CYNTHIA KAVINGUHA AND RADINA LUGASI** (Suing as the Administrators of the estate of **JOHN OMBUNGA NYANGWESO (DECEASED) ... RESPONDENTS** **Coram: Before Justice R. Nyakundi** **M/s Kitiwa & Partners Advocates** **M.P Mwangi & Co. Advocates** **RULING** 1. Before this Court is a Notice of Motion dated 22nd day of June 2016, brought under order 22 Rule 22 and Order 51 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act. The Appellant seeks the following orders: 2. *Spent.* 3. *There be an order of stay of execution herein pending the hearing of the application dated 15th June 2026.* 4. *The warrants of attachment and sale and the proclamation herein be set aside.* 5. *The Respondent be ordered to pay the auctioneers costs.* 6. *Costs of this application be borne by the Respondent.* 7. The application is based on the grounds that;- 8. *The Respondents herein have instructed auctioneers who have proclaimed the Appellant's properties.* 9. *There is an application dated 15th June 2026 pending hearing seeking to review the Court's order dismissing the Appellant's application for stay of execution pending appeal.* 10. *The decretal sum is in a joint account in the names of the Advocates on record and therefore the proclamation and attempt to attach the Appellant's propert*ies *is unwarranted having paid out the Appellant half the decretal sum and deposited the other half.* 11. *The warrants are based on falsehoods and do not take into account half of the decretal sum already paid out to the Respondents' Advocate and the interest thereon.* 12. *Unless stay of execution is granted, the application dated 15th June 2026 will be rendered nugatory and the Appellant will suffer irreparable loss.* 13. The application is supported by the annexed sworn affidavit of Lucy Wanjiru who deponed as follows: 14. *THAT I am a legal officer of Madison General Insurance Kenya Limited who were the insurers of the Appellants herein Kenya Power and Lighting Company Limited.* 15. *THAT I am conversant with the facts of this case and I am therefore duly competent to depone to the matters herein below.* 16. *THAT I am aware that this Honourable Court delivered a ruling herein on the Appellants application dated 15th of May 2026 on 11th of June 2026.* 17. *THAT I am aware that our Advocates on record herein have filed an application dated 15th June 2026 for review of the orders of this Honourable Court.* 18. *THAT I am aware that this Honourable Court has given directions on the aforesaid application and it is due for mention on 23rd June 2026.* 19. *THAT whereas the application for review is pending, the Respondent has gone ahead and instructed auctioneers who have proclaimed the Appellants property. Annexed are copies of warrants of attachment and sale and proclamation marked as annextures LW 1 and LW 2 respectively.* 20. *THAT the said warrants are purportedly in execution of the decree of this Honourable Court but have been unlawfully extracted in the lower Court file.* 21. *THAT the warrants of attachment are falsified and in pursuance of the false narrative that was advanced by the Respondent herein in the replying affidavit to the application for stay of execution pending appeal that no payment has been made to the Respondent.* 22. *THAT the warrants of attachment do not take into consideration half of the decretal sum paid and the interest waived therefrom.* 23. *THAT the Appellants properties have been proclaimed and are likely to be carried away anytime and this will interfere with the operations of the Appellant.* 24. *THAT in any event, the balance of the decretal sum is in a joint account where the Respondents Advocate is a signatory and the best option was to seek an order of the Court for release of the funds to him and not to initiate execution proceedings against the Appellant. This smacks of malice and bad faith.* 25. *THAT it is therefore necessary and in the interest of justice that orders of stay of execution be granted.* 26. *THAT unless orders of stay of execution are granted, the application dated 15th June 2026 and the intended appeal will be rendered nugatory and the Appellant will suffer irreparable loss.* 27. *THAT I therefore pray that this Honourable Court do grant the orders sought.* 28. In response to the application is the replying affidavit of Cynthia Kavinguha avers as follows:- 29. *THAT I am one of the Respondent herein and have authority to swear this affidavit on behalf of Radina Lugasi and hence competent to swear this affidavit.* 30. *THAT the Notices of Motion dated 15th June 2026 and 22nd June 2026 together with their supporting affidavits sworn on 15th June 2026 and 22nd June 2026 respectively and the same have been read and explained to me by my advocates on record and I wish to respond to the averments therein as follows;* 31. *THAT the Honourable Court reached a well-reasoned, meticulous, correct and well analysed verdict in dismissing the Application dated 15th May 2026 based on its merit and I further oppose the said applicants applications with my duly filed grounds of opposition dated 15th June 2026.* 32. *THAT am advised by my advocates on record which advise I verily believe to be true that the instant applications which are disguised as seeking orders for review are an invitation of the Honourable Court to appeal its own decision which it delivered on 11th June 2026 which it lacks power, is unprocedural and res judicata.* 33. *THAT the Honourable Court is being invited to re-litigate matters that were duly litigated before it and in particular the orders sought for stay of execution had been granted by this Honourable Court vide previous applications dated 24th September 2024 and 27th February 2025 filed by the Applicants herein and which were determined and they were granted stay orders pending the determination of the appeal which was duly determined on 27th April 2026 and as such those stay orders lapsed or extinguished by operation of law & do not exist.* 34. *THAT am entitled to enjoy the fruits of this judgment which was delivered in lower Court since 5th September 2024 and a decision on first Appeal on 27th April 2026 and which decretal amount continues to accrue interest at 14% per annum to date June 2026 and currently stands at Kshs. 7,247,490/=.* 35. *THAT I have been advised by my Advocates on record which advise I verily believe to be true, that the Application as filed is vexatious and an abuse of the Court process as the Applicant and its Advocates have deliberately sought the stay orders by misleading, non-disclosure and concealment of material facts that the orders which had been issued by the Hon. Lady Justice Kamau on 4/12/2024 for the previous stay of execution was conditional to wit to deposit the 50% of the decretal amount in a joint interest earning account and this was duly overtaken by events as the joint account was terminated on 14th May 2026 to pave way for settling of the other two matters in this series (HCCA E044 & E045 OF 2025) and as such there are no funds held in any joint account as between the Applicants or Respondents' Advocate totalling the decretal amount.* 36. *THAT the foregoing notwithstanding the Orders for stay earlier issued were extinguished upon the determination of the first Appeal herein and the Honourable Court is factus Officio and the instant applications as the Court rightly held are Res Judicata.* 37. *THAT further am advised by my Advocates on record which advise I verily believe to be true, that no condition stipulated under both Order 42 rule 6 and Order 45 has been demonstrated or complied with by the Applicant to warrant orders for stay of execution and as such the orders sought ought to be denied at this early stage to pave way for the Respondent to enjoy the fruit of its judgment in this matter.* 38. *THAT the instant applications are based on the Respondent's feigning ignorance of the ruling of 11/6/2026 where the Respondents posit that this honourable Court urged it to file an application for extension of time to comply with orders issued previously by Hon. Lady Justice Kamau on 3/12/2024 which stay Orders were overtaken by event upon the first appeal being heard and its judgment delivered on 27th April 2026 and as such there is nothing or no Order for stay of execution that can be enlarged or extended.* 39. *THAT the Applicant has failed to demonstrate any ground of review to warrant the orders sought since there is no apparent error on the record as the ruling delivered on 11/6/2026 determined correctly the issues brought before it, no discovery of new material or evidence to warrant the review and no compelling reason and the instant application is only fashioned as an appeal which the Honourable Court lacks the jurisdiction to entertain having determined the application dated 15/5/2026 on its merit.* 40. *THAT I am further advised by my advocates on record which advise I verily believe to be true, that this Honourable Court in its ruling that prompted the instant applications is to the effect that after considering the applicant's draft Memorandum of Appeal, ALL the evidence and the law, it reached a valid determination that "there is no appeal worthy its legal salt (salus populi suprema lex esto) to be adjudicated upon by this Court & that the appeal is standing on sinking sand".* 41. *THAT the foregoing is a clear demonstration that the Applicants are only out to frustrate the Plaintiff from enjoying the fruits of her judgment as the appeal in its own nature was pronounced dead on arrival and thus the application for stay of execution having failed the test of the chances of the appeal being successful ought to be denied.* 42. *THAT I have further been advised by my advocates on record which advise I verily believe to be true that this Honourable Court having heard and determined the previous applications for stay of execution the instant application is an abuse of the Court process and a travesty to justice and the only remedy the Applicants herein have is to appeal the ruling of 11/6/2026 to the Court of Appeal and not to file for an application for review which is fashioned and disguised as an appeal.* 43. *THAT I am advised by my advocates on record which advise I verily believe to be true that the appropriate forum for the Applicant seeking the orders of stay of execution in the instant application is the Court of Appeal under Court of Appeal rules 5 (2) (b) and not this Honourable Court which has already expressed itself on the said application through its ruling of 11th June 2026.* 44. *THAT in the Interest of justice and for consistency we invite the honourable Court to strictly abide by the Principle of finality and dismissed the applications with costs to the Respondent.* 45. *The foregoing notwithstanding, incase the honourable Court is inclined to grant temporary stay and to enable the conclusion of this matter expeditiously, the Applicant herein be directed to release the entire decretal balance within 7 days to the Respondent's advocate amounting to Kshs. 7,247,439.20/= which amount is excluding the costs and accruing interests at 14% to be held on stakeholders terms for orders of temporary stay of execution of the judgment to be issued.* 46. In addition, the respondent filed ground of opposition placing reliance on two doctrines res judicata and *factus officio*. The Applicant’s Learned Counsel together with the learned counsel of respondent filed written submissions dated 1st July 2026 and correspondingly for the respondent dated 30th June 2026. These legal perspectives as viewed by both Counsels would constitute part of the exercise of judicial discretion as to whether this is a competent Court to issue the plea as prayed for by the applicant. **Background** 1. The origin of this litigation is traceable to the magistrate’s Court in which the Plaintiff sued Kenya Power and Company Ltd. on matters arising out of an accident which occurred on or about 19th of April 2021. In the plaint dated 20th January 2026 the Plaintiff prayed for judgment against the defendant jointly and severally for: 2. *Special damages of Kshs 250,000* 3. *General damages under the fatal accident act and/or law reform act* 4. *Loss of earnings and costs of this suit* 5. *Interest on (a)(b) and (c) above at Court rates* 6. The Trial Court under Article 50 as read with Article 27 (1) of the constitution and conjunctively with the CPA heard the claim on the merits on 5th September 2024 conclusively a decision to this effect was proclaimed to the parties by the Learned Trial Magistrate SPM Agonda in which she expressed herself as follows: *Liability 100% against the defendant* *Pain and suffering……..… Kshs.50,000/=* *Loss of expectation of life… Kshs.100,000/=* *Loss dependency………. Kshs.4,000,000/=* *Special damages………….. Kshs.120,000/=* *Grand Total………..... Kshs.4,270,000/=* *(Kenya Shillings Four Million Two Hundred and Seventy Thousand Only). The Plaintiff is awarded the costs of this suit together with the interests thereon at Court rates from the date of this judgment until payment in full. Orders accordingly.* 1. The Appellant Kenya Power Lighting Company Ltd was aggrieved with this judgment of the trial Court and on 18th September 2024 filed a memorandum of appeal against all judgment based on the following grounds: 2. *The Learned trial magistrate erred in law and fact in holding the Appellant 100%liable contrary to the evidence on record.* 3. *The Learned trial magistrate erred in law and fact in failing to find that the Respondents did not prove their case on a balance of probabilities.* 4. *The Learned trial magistrate erred in law and fact in failing to find that the deceased were the author of his own misfortune.* 5. *The Learned trial magistrate erred in law and fact in failing to dismiss the Respondents' case.* 6. *The Learned trial magistrate erred in law and fact in awarding damages that are inordinately excessive.* 7. *The Learned trial magistrate erred in law and fact in using wrong principles in assessing damages.* 8. *The Learned trial magistrate erred in law and fact in failing to consider the Appellant’s submissions.* 9. *Reasons wherefore the Appellant prays that:-* 1. *The judgment of the lower Court be set aside.* 2. *An order be made dismissing the Respondents' case.* 3. *The costs of the lower Court and this appeal be awarded to the Appellant.* 10. This appeal was finally heard and determined as evidenced by the judgment of her Ladyship Kamau J read and delivered on 27th day of April 2026 which decreed as follows: 11. *For the foregoing reason, the upshot of this Court's decision was that the Appellant’s Appeal that was lodged on 18th September 2024 was partially merited and the same be and is hereby allowed in part. The effect of this decision is that the judgment of the Learned Trial Magistrate Hon J.A. Agonda in Vihiga PMCC NoE018 of 2022 Cynthia Kavinguha & Another vs Kenya Power & Lighting Co. Ltd be and is varied and substituted with the order that judgment be and is hereby entered in favour of the Respondent herein against the Appellant herein for the sum of Kshs 5,732,160/= made up as follows:-* *Loss of expectation of life … Kshs 50,000/=* *Pain and suffering……….. Kshs 6,895,200/=* *Loss of dependency* *2/3x34,476x12x25* *Special damages Kshs 120,000/=* *Kshs 7,165,200/=* *Less 20% contributory negligence Kshs 1,433,040/=* *Kshs 5,732,160/=* 1. *Plus costs of the suit and interest thereon at Court rates. For the avoidance of doubt, interest on special damages will accrue interest from the date of filing suit until payment in full while damages under the Law Reform Act and the Fatal Accidents Act will accrue from the date of judgment of the Trial Court until payment in full.* 2. *As the Appellant was partly successfully in its appeal, it is hereby directed that each party will bear its own costs of this Appeal.* 3. *It is so ordered.* **Decision** 1. This Court on 11th day of June 2026, spoke at length on the various perspectives with regard to these proceedings which have been initiated post judgment of the Trial Court and subsequently the first Appeal Court. Apparently, there was even an oversight on the part of this Court to firmly speak to the issues of finality of the proceedings before the High Court given the decision by the Judge coordinate with regard to the merits of the appeal. 2. The final judgment of the High Court demonstrates that in so far as vindication of rights as between the subordinate Courts and within the statutory mechanisms the appellant is barred from vexing the Court underpinned the doctrine of exhaustion. The Court lacks the requisite jurisdiction or cause of action to hear the dispute in so far as the dictates of the Constitution and the enabling statutory policy framework on litigation within the hierarchy of Courts is concerned. 3. As I said elsewhere in the decision of this Court dated 11th day of June 2026 it is acknowledge the exercise of the Court’s power under Order 42 Rule 6(1)(2) of the CPR and having taken into account the applicable law on appeals primarily the other forum of conveniens to interrogate the validity and legality of the decision by the Judge coordinate is the Court of Appeal. I further reiterate that under Section 7 of the CPA the doctrine of *res judicata* which is applicable in this litigation is to protect Courts from having to adjudicate more than once on issues arising from the same cause of action and to protect the public interest on finality of litigation. That there should be finality in litigation and that justice should not only seen to be done but be done between the parties by the already judgment/rulings delivered on the merits in compliance with the underlying principles on fair trial rights implicit in civil adjudication within the scope of Article 50 of the Constitution. 4. The appeal which was determined by the High Court was preferred by the Applicant, in such a case cause of action estoppel arises whether the cause of action in a later proceeding is identical to that other earlier proceeding before the same Court and between the same parties or their privies and having involved the same subject matter. In my considered view, the bar is absolute, in relation to all facts and points of law decided unless fraud or collusion is alleged such that to justify setting aside the earlier ruling by this Court dated 11th June 2026. 5. This Court is being asked to invoke the review jurisdiction under the provision of Section 80 of the CPA as read with Order 45 Rule 1 of the CPR. The discovery of new factual material which could have been found out by reasonable due diligence for use in the earlier proceedings that may be in possession of the Applicant does not meet the criterion outlined in the Rules to permit the latter motion to be reopened. In my purposive interpretation of Section 80 of the CPA and Order 45 Rule 1 of the CPR it is not competent for this Court in the case of the same question arising between the same parties to review a previous decision which is open to an appeal. If the applicant feels very strongly that the decision was wrong and there are errors of law on the face of the record it ought to be have been appealed in due time. 6. In my appreciation of the dicta in the persuasive case of *Canada and Dominion Sugar Company Limited V. C~Nadian National (West Indies) Steamship Limited* that: - *"Estoppel is a complex legal notion involving a combination of several essential elements, the statement to be acted on, "action on the faith of it, resultant detrimental to the actor, Estoppel is often described as a rule of evidence, as indeed it may be so described. But the whole concept is more correctly viewed as a substantive rule of law……..Estoppel is different from contract both in its nature and consequences. But the relationship between the parties must be such that the imputed truth of the statement is a necessary step in the constitution of a cause of action. An estoppel is a rule whereby a party is precluded from denying the existence of some facts which he has formerly asserted. It is usually said only to be a rule of evidence because at common law an action cannot be founded thereon, but in equity an action and in both a defence can be founded on estoppels and as estoppels must be pleaded and evidence not, it may in many cases be regarded as a rule of substantive law* 1. This combination of factors together with rule of ancient common law on finality of litigation and now *res judicata* under Section 7 of the CPA in our jurisdiction, the applicant is barred to file any action real or personal by judgment demurral, confession or verdict that all the like action of the same nature for the same thing forever. *". (See Maclaire v Gatty (1921) 1 A.C 376, S. 3(2) of the Judicature Act and Binti Salim Bin Khaljan El Busaidi v Hamed Bin Suleiman El Busaidi & Another (1964) E.A 248)* 2. I have traced this litigation from the Magistrate’s Court to the decision on appeal to this High Court which determined the issues with finality. It is observed that a re-hearing of the matter by this Court is impermissible by law, and is further observed that under Section 80 of the CPA as read with order 45 Rule 1 the powers of review can only be exercised for a correction of a mistake but not to substitute a view. This legal contours on review of jurisdiction in Kenya has now been crystallized by various decisions by the Superior Courts as demonstrated herein below: * *National Bank of Kenya Limited v Ndungu Njau (1997) eKLR: This foundational case established that an error on the face of the record must be self-evident. A Court cannot use a review application to act as an appeal or to correct a decision simply because it is erroneous in law* * *Mutoro v Obala (Civil Appeal E011 of 2025): The High Court evaluated whether counting the days to file an appeal created an error on the face of the record, highlighting the procedural framework.* * *Kariuki v Njau (Commercial Appeal E040 of 2020): The High Court confirmed that a judgment can be reviewed and altered if the judge patently omitted material issues—such as failing to determine a specific monetary sum owed to a party.* * *Mutuia & 2 others (Exparte Applicants) (2025 KEHC 7446): The High Court reviewed a judgment where the judge made a mistake of fact by stating that a document was not exhibited when it was actually annexed to the affidavits.* 1. These catchy words under Order 45 Rule 1 of the CPR are also identical in the Civil Procedure Code of India in which their Supreme Court in the case of *Meera Bhanja v Nirmala Kumari Choudhury (1995) SCC 170* held that: *“An error apparent on the face of record must be such an error which must strike one on mere looking at the record and would not require any long-drawn process of reasoning on points where there may conceivably be two opinions. We may usefully refer to the observations of this Court in the case of Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale AIR 1960 SC 137, wherein, K.C. Das Gupta, J., speaking for the Court has made the following observations in connection with an error apparent on the face of the record: An error which has to be established by a long-drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior Court to issue such a writ.”* 1. In this case, as one would recall that the applicant was aggrieved with the decision of the subordinate Court and thereafter preferred an appeal to the High Court. The appeal was determined on the merits and again filed a motion before that very same Court which was conditioned on certain covenants and as at the time this Court made a decision on 11th June 2026 it pointed out the facets of the entire spectrum of the litigation is *res judicata*. That in the event there was breach of a condition precedent and without leave of the Court for enlargement of time, any such matters arising are precluded from the jurisdiction of this Court in terms of personam and Res. This Court lacks the competence to look yonder on matters which are within the purview of the Court of Appeal. That is in so far as review jurisdiction of this Court is obligated by law. 2. The other remedy on stay of execution under Order 42 Rule 6 of the Civil Procedure Rules has been procedurally and substantially alluded to by this Court both in the decision delivered by Kamau J as she then was and the recent pronouncement by yours truly in a ruling dated 11th June 2026. In Kenya Courts grant stay of execution pending appeal based on well established principles. First the primary consideration include whether an appeal has a likelihood of success, second if the Appellant will face financial ruin without a stay and finally whether the appeal would be rendered nugatory (pointless) if the judgment is executed. Having regard to the terms of the said judgment by this Court on appeal there is no intended appeal capable of being adjudicated as between the Appellant and the Respondent. The stay of execution was to preserve the Res to pave way for the appeal process to take effect and judgment delivered on the merits. There is no second bite of the cherry in law for the Appellant to reopen the appeal process. This is a forum of non-conveniens for want of jurisdiction. The general rule is on the determination of the appeal a successful litigant is entitled to the fruits of his or her judgment without fetter. There is indeed a risk of injustice to the Judgment Creditor to be denied access to justice in the form of execution and enforcement of the decree duly extracted for compliance. 3. This Court takes judicial notice that the drafters of the law under the provisions of Section 1A, 1B, 3, 3A, 80 of the Civil Procedure Act as construed with Order 42 Rule 6(1) (2) and Order 45 Rule 1 of the Civil Procedure Rules with the touchstone on stay and review remedies the same are not available to the Applicant by dint of the doctrine of res judicata and cause of action estoppel. Let me state for a moment to foreclose this legal discourse that the provisions on review which literally means the re-examination or reconsideration of the matter which has already been dealt with by the same Session Judge or in any event under the doctrine of necessity by a concurrent Judge of the same Court is never an appeal. The philosophical spirit and letter of the law inherent in it, is the universal admissibility and acceptance of the human fallibility of Judges as they go about the noble duties of judging in the adjudicatory process under Article 50(1) of the Constitution. That even with that characterization in mind in the eyes of the law the Courts at various levels together with the constitutional dictates under Article 159(2)(b) that justice shall not be delayed and the timeframes set in our statutes on the appeal process lean strongly in favour of finality of the trial process legally initiated and properly prosecuted within a reasonable time. 4. It should therefore be borne in mind that a judicial decision from a competent Court or tribunal duly constituted under Article 50 (1) of the Constitution only declares the outcome of the dispute and does not make or change the law. The only recourse envisaged under the law under Order 45 Rule 1 of the CPR the scope is very narrow for the same session Judge to alter the decision on the basis of review. Sometimes I hear echoes of justice from the litigants when invoking Order 45 Rule 1 of the CPR on review jurisdiction. My answer to those respective parties is that the word justice and injustice in my view are sometimes loosely used and my understanding of the law they have different meanings to different person(s) and different surrounding circumstances of the subject matter. As once one, legal jurist observed *justice itself which we are wont to appeal to as a test as well as an ideal, may mean different things to different minds and at different times. Attempt to objectify its standards or even to describe them have never wholly succeeded.* 5. For those reasons, I therefore decline to accede to any such motion at this stage of the proceedings. As if that is not enough, I decree that the doctrine of *res judicata* under Section 7 of the CPA together with the doctrine of estoppel cause of action bars the Applicant from being availed the right to seek reopening of proceedings before this Court. That right to me is lost and cannot be waived by this Court. 6. Orders accordingly. **DATED AND DELIVERED THIS 22ND DAY OF JULY 2026.** **………………………………….** **R. NYAKUNDI** **JUDGE**