https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8115

Kenya Power and Lighting Company Ltd v Lugasi & another (Suing as the Administrators of the Estate of John Ombunga Nyangweso – Deceased) (Civil Appeal E046 of 2024) [2026] KEHC 8115 (KLR) (11 June 2026) (Ruling) Neutral citation: [2026] KEHC 8115 (KLR) Republic of Kenya In the High Court at Vihiga Civil Appeal E046 of 2024 RN Nyakundi, J June 11, 2026 Between Kenya Power and Lighting Company Ltd Appellant and Radina Lugasi 1st Respondent Cynthia Kavinguha 2nd Respondent Suing as the Administrators of the Estate of John Ombunga Nyangweso – Deceased Ruling 1.Before Court is a notice of motion under certificate of urgency dated 15th May 2026 brought under Order 42 Rule 6 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act. The Appellant/Applicant is seeking orders that:a.Spentb.This application be heard ex-parte in the first instance.c.There be an order of stay of execution of the judgment herein pending the hearing of this application inter parties.d.There be an order of stay of execution of the decree herein pending the hearing and determination of the intended appeal.e.Costs of this application be in the cause. 2.Which application is based on grounds that:a.This honorable Court delivered a judgment herein on 27th April 2026.b.The Appellant is dissatisfied with the judgment of the court and intends to appeal to the court of appeal.c.The intended appeal has merits, raises triable issues and has high chances of success.d.The orders granted for stay of execution have lapsed and the Appellant is apprehensive that the Respondents may proceed with execution.e.In the event that execution is levied the intended appeal will be rendered nugatory and the Appellant will suffer irreparable loss. 3.The application is supported by and affidavit sworn by Electina Nafula who depones as follows:a.That I am a Legal Officer of Madison General Insurance Kenya Limited who were the insurers of the Appellant herein.b.That this honourable Court delivered a judgment herein on 27th April 2026.c.That the Appellant is dissatisfied with the Court’s judgment and instructed its Advocates on record Ms Kitiwa and Partners Advocates to lodge an appeal.d.That the said law firm has filed a notice of appeal and requested for typed proceedings for purpose of filing an appeal. Ae.That the intended appeal raises triable issues of law and has high chances of success.f.That the decretal sum is in a joint account in both names of law and has high chances of success.g.That the Respondents had already been paid half of the decretal sum and the other half is in a joint account as aforesaid.h.That the Respondents are people of straw and will not be in a position to refund the decretal sum in the event that the appeal is successful.i.That the orders of stay of execution granted by the court are about to lapse and it is therefore fair that orders of stay of execution be granted as prayed for herein.j.That the Appellant is apprehensive that the Respondents may resort to execution of the decree and if this was to happen, the appeal will be rendered nugatory and the Appellant will suffer irreparable loss.k.That the Appellant has already provided security and it is fair that the decretal sum remains in the joint account pending the hearing and determination of the appeal. 4.The Respondent in her replying affidavit avers as follows:a.That I am the Respondent herein and have authority to swear this affidavit on behalf of my Radina Lugasi and hence competent to swear this affidavit.b.That the Notice of Motion dated 15th May 2026 together with the supporting affidavit sworn on 19th May 2026 have been read and explained to me by my advocates on record and I wish to respond to the averments therein as follows.c.That I am possessed of a legal and a valid 1st Appeal judgment pursuant to the determination of the case herein on merits.d.That I 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. 7,076,490/= as per the annexed letter of tabulation marked CK-1.e.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 for the previous stay to deposit the decretal amount in a joint interest earning account were 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 and as such there are no funds held in any joint account as between the Applicants or Respondents' Advocate and I annex herewith the funds transfer Application form from Equity Bank demonstrating the same marked CK-2.6.f.That the foregoing notwithstanding and in response to paragraphs 6 & 11 of the Applicant's supporting Affidavit, the annexture marked ENN-4 is non-existent since the said account was terminated on 14/5/2026 when the funds held in the said account were utilised to settle the decretal balance in two (2) other related matters in this series being Vihiga HCCA E044 & E045 OF 2024 and thus no joint account is held as between the Applicants and the Respondents as of today.g.That further am advised by Advocate on record which advise I verily believe to be true, that no condition stipulated under Order 42 rule 6 has been demonstrated or complied by the Applicant to warrant 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.h.That I am further advised by my advocates on record which advise I verily believe to be true, that the Judgment the subject of this application was arrived at after very meticulous and thorough consideration of the facts and the Law by the High Court on first appeal where the court exercised its supervisory jurisdiction and reviewed all the evidence and reached a just and correct position.i.That I have further been advised by my advocate on record which advise I verily believe to be true that the Applicant has filed this application seeking for stay of execution to deny me from realizing the fruits of the judgment which we have been pursuing from it over Five (5) years and thus the Applicant is hypocritical and is out to further delay, frustrate and attempt to deny me the right to enjoy the fruits of the judgment which automatically will prejudice me as justice delayed is justice denied.j.That I am advised by my advocates on record which advise I verily believe to be true that the Applicant has approached the Honourable court with falsehoods, unclean hands, concealment of material facts, non-disclosure and thus equity cannot favour it since it continues denying to pay the vigilant Respondent the decretal amount thus itis contradictory to the maxim he toho seeks equity must do equity.k.That in the Interest of justice and for consistency and to enable the conclusion of this matter expeditiously, I am inclined just as had be ordered before by Hon. Lady Justice Kamau in staying execution to enable hearing and determine the first Appeal ( refer to Annexture marked CK-3), the Applicant herein for orders of temporary stay of execution of the judgment to be issued on the following terms:-a) THAT half of the total decretal amount tabulated as per my annexture marked CK-1 being Kshs.7,076,490/= together with accrued interest to date & which continues to accrue interest at 14% be released to me pending the hearing and determination of this Application and the balance or the other half of the judgment amount be deposited in a joint interest earning account between the Advocates on record. b) THAT the foregoing in paragraph 11 (a) be complied with within Seven (7) days failure to which the temporary stay will automatically lapse.l.That it is in the interest of justice that the foregoing be adopted as the order of the court and further the Judgment amount be secured by an order of the Court.m.That the foregoing notwithstanding the Honourable Court to compel the Applicant pursuant to Order 42 Rule 6 of the Civil Procedure Rules to strictly abide the orders issued. 5.The Intended Appellant is aggrieved with the judgment of the High Court and prefers to pursue its rights to the Court of Appeal hence the reason for stay of execution. The application has been canvassed by way of written submissions by parties including grounds of opposition dated 4th June 2026 which state as follows:a.That the Application is a non-starter, frivolous, unprocedural, incurably defective, vexatious, unmerited and an abuse of the court process.b.That the Applicant's misrepresentation of material facts and lack of candor is clearly manifest in the Application and its pleadings which renders it undeserving of this Honourable Court's discretion and or granting the orders as they have peddled falsehoods to hoodwink the honourable court in order for it to be granted the orders sought noting that there is no joint account between its Advocate and the Respondent's Advocates holding decretal amount since the same was duly terminated on 14/5/2026.c.That this Honourable court's discretion is not designed to assist a person who has deliberately sought orders through misleading, non-disclosure, concealment of material facts and underhand tactics whether by evasion or otherwise to obstruct or delay the course of justice such as the Applicant is trying in the instant Application.d.That he who comes to equity must come with clean hands and must also be ready to do equity and the Applicants are not taking in cognizance the fact that this Honourable court is factus officio having delivered its Appeal judgment in this series of Three (3) matters being Appeal E044, E045 & E046 of 2025whereby the condition that had been granted for stay was for the Applicant to release half ( 50% ) of the decretal amount and deposit the other half and the actual decretal amount now stands at Kshs.7,076,490/= and continues to accrue interest at 14% till payment in full which amount is yet to be released and or deposited in the joint interest earning account.e.That as it is, the Applicant has not demonstrated any sufficient cause as stipulated in Order 42 Rule 6 there being no substantial loss that shall be occasioned to the Applicant and there is no security that has been deposited to warrant the stay of execution noting that Annexture EN-4 exhibited was for a joint account that was terminated on 14/5/2026 by both Advocates to pave way for payment of the decretal balances in other 2 Appeals in this series being Vihiga Appeal No. E044 & E045 of 2024 and as such the orders sought ought to be denied and the instant Application be dismissed with costs. Decision 6.I have reviewed the record of this litigation history as between the parties now before me for an interlocutory order under Order 42 Rule 6 of the Civil Procedure Rules on stay of execution pending an appeal to the Court of Appeal. Incidentally, these same prayers seem to have been prayed for in the same forum but presided over by the session Judge one Justice Kamau who was also the one involved in delivering the judgment of the first appeals Court. Thereafter the record bears me witness that an application for stay of execution under Order 42 Rule 6 was applied for before the same Judge who on consideration of the issues ruled as follows in an order extracted by the Court dated 4th December 2024 expressly in the pronouncement as herein under stated:Upon this matter coming up for mention for further orders before Hon, Lady Justicej.kamau on the 3' December 2024 in the presence of Indeche for the Appellant and Mwangi for the Respondent;It is hereby ordered as follows; 1.That prayer No (d) of the Appellant's Notice of Motion Application dated and filed on 24th September 2024 be and is hereby granted on condition that the Appellant shall release half of the decretal sum to the Respondent and deposit the other half of the decretal sum in an interest earning account in the joint names of the advocates of the Appellant and the Advocates of the Respondent by 10th February 2025 and in default thereof, execution to issue forthwith. Costs of the Application will be in the cause. 2.That the lower court file to be availed forthwith 3.That matter to be mentioned on 6th May 2025 to confirm compliance and/or for further orders and/or directions. 7.In the instant application dated 15th May 2026 these are the orders which are being sought before this very same Court:a.This application be certified as urgent.b.This application be heard ex-parte in the first instance.c.There be an order of stay of execution of the judgment herein pending the hearing of this application inter parties.d.There be an order of stay of execution of the decree herein pending the hearing and determination of the intended appeal.e.Costs of this application be in the cause. 8.What this means the application runs foul the provisions of Section 7 of the Civil Procedure Act on the doctrine of res judicata which reads as follows:“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.”In the case of Henderson v Henderson [1843] 67 ER 313, the court stated with regard to the doctrine of res judicata;“…where a given matter becomes the subject of litigation in and adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward, as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time…” 9.In the Kenya legal system there is always multiplicity of litigation more often than not on the same subject matter and issues particularly involving interlocutory applications which do not go to the root of the dispute. That is the wisdom behind the Court of Appeal decision in John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others [2015] eKLR, in which it observed as follows:“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. It is a doctrine of general application and it matters not whether the proceedings in which it is raised are constitutional in nature. The general consensus therefore remains that res judicata being a fundamental principle of law that relates to the jurisdiction of the court, may be raised as a valid defence to a constitutional claim even on the basis of the court's inherent power to prevent abuse of process under Rule 3(8) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. On the whole, it is recognized that its scope may permeate broad aspects of civil law and practice. We accordingly do not accept the proposition that Constitution-based litigation cannot be subjected to the doctrine of res judicata. However, we must hasten to add that it should only be invoked in constitutional litigation in the clearest of the cases. It must be sparingly invoked and the reasons are obvious as rights keep on evolving, mutating, and assuming multifaceted dimensions.” 10.The Applicant/Intended Appellant has once again moved the same Court for stay of execution without first answering the question, what happened to the orders issued by Kamau J on 3rd December 2024 and extracted on the 4th December 2024 by the Deputy Registrar. The conditions outlined in that very order by the Court do not seem to have been complied with specifically clause 2 which states as follows:That prayer No (d) of the Appellant's Notice of Motion Application dated and filed on 24th September 2024 be and is hereby granted on condition that the Appellant shall release half of the decretal sum to the Respondent and deposit the other half of the decretal sum in an interest earning account in the joint names of the advocates of the Appellant and the Advocates of the Respondent by 10th February 2025 and in default thereof, execution to issue forthwith. Costs of the Application will be in the cause. 11.Disobedience of a Court order is treated as civil contempt in Kenya for it is settled law that all Court Orders even those believed to have been issued irregularly or in error must be strictly obeyed unless officially set aside. As a Court I need to reaffirm that Court orders must be obeyed and explicitly frowned upon attempts made by litigants to circumvent its judgments by initiating subsequent actions on the same matter. This is actually what the intended Applicant are trying to achieve by filing a subsequent application on stay of execution which already has been heard and determined by the Court. In the case of the Republic v. Liberty Press Limited & Others (1968) GLR 123 and others the Court remarked:“The important position of the judiciary in any democratic set-up must be fully appreciated. Performing, as they are called upon to do, the sacred duty of holding the scales between the executive power of the State and the subject and protecting the fundamental liberties of the individual, the Courts must not only enjoy the respect and confidence of the people among whom they operate, but also must have the means to protect that respect and confidence in order to maintain their authority. For this reason, any conduct that tends to bring the authority and administration of the law into disrespect or disregard or to interfere in any way with the course of justice becomes an offence not only against the Court but against the entire community which the Courts serve."Similarly in the case of The Attorney General v. Times Newspaper Limited (1973) 3 ALL ER 54,' Lord Diplock stated that:“In any civilised society it is a function of government to maintain courts of law to which its citizens can have access for the impartial decision of disputes as to their legal rights and obligations towards one another individually and towards the state as representing society as a whole. The provision of such a system for the administration of justice by courts of law and the maintenance of public confidence in it are essential if citizens are to live together in peaceful association with one another. 'Contempt of court' is a generic term descriptive of conduct in relation to particular proceedings in a court of law which tends to undermine that system or to inhibit citizens from availing themselves of it for the settlement of their disputes. Contempt of court may thus take many forms." 12.If this Court was to revisit the application on stay of execution pending appeal, it will an attempt to interfere with the administration of justice. This is basically a re-litigation of issues that have already been definitely settled as between the parties on the same subject matter. 13.For those reasons, having taken into account applicable law on grant of stay of execution pending appeal whatever difference there might be between the two applications the initial one having been determined by Kamau J and the current one now before me for adjudication, this Court lacks the necessary jurisdiction to grant any orders so prayed by the Applicant. In law, the Applicant is estopped from seeking remedies on stay of execution which are identical in the earlier proceedings before this very same Court presided over by Kamau J as she then was as the session Judge at Vihiga High Court. It is not competent for the Court in the case of the same question arising between the same parties to review a previous decision not open to appeal. If the decision was wrong it ought to have been appealed from in due time within thirty days from the 4th of December 2024. 14.In Halsbary’s Laws of England, 4th Edition Vol. 16 paragraph 1528 the learned Authors had this to say:“In order for the defence of res judicata to succeed it is necessary to show not only that the cause of action was the same but also that the plaintiff has had an opportunity of recovery and but for his own fault might have recovered in the first action that which he seeks to recover in the second action… It is not enough that the matter alleged to be concluded might have been put in issue, or that the relief sought might have been claimed. It is necessary to show that it was actually put in issue or claimed.” 15.The best remedy available to the Respondent/Intended Appellant is to seek leave of enlargement of time to comply with the condition precedent of releasing half the decretal sum to the Respondent whereas the balance shall be deposited in the joint earning account of both legal Counsels seized of the matter. As things stand in this case, there is no appeal worthy its legal salt (salus populi suprema lex esto) to be adjudicated upon by this Court. The appeal is standing on sinking sand. The Respondent shall have costs of this application. Orders accordingly. DATED AND DELIVERED AT VIHIGA VIA CTS THIS 11TH DAY OF JUNE 2026……………………………….……..R. NYAKUNDIJUDGE