Lucy Jepkemoi Ruto v Jesse M. Gita t/a Gallant World Wise Auctioneers

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **CIVIL APPELLATE DIVISION** ***(Coram: A. C. Mrima, J.)*** **CIVIL APPEAL NO. E576 OF 2025** ***-between-*** **LUCY JEPKEMOI RUTO.…………..…………. APPELLANT/APPLICANT** ***-versus-*** **JESSE M. GITA** **T/A GALLANT WORLD WISE AUCTIONEERS……….... RESPONDENT** **RULING** **Background:** 1. In its Ruling of 23rd May 2025, the trial Court dismissed the Applicant’s herein application which sought to set aside the default judgment entered in favour of the Respondent herein. In a bid to challenge the outcome, the Applicant filed a Memorandum of Appeal alongside an application dated 9th June 2025 for a stay of execution. 2. On 16th July 2025, the parties recorded a consent compromise which the Court adopted as an order. It directed the Applicant to deposit Kshs. 7,000,000/- in Court within 30 days as security for costs to earn a stay of execution. 3. Unable to meet the financial condition, the Applicant instituted an application for substitution of security, the subject of this Ruling. **The Application:** 1. Through the Notice of Motion dated 12th August 2025, the Applicant sought the following orders: - 2. *Spent.* 3. *Spent.* 4. *Spent.* 5. *THAT, the upon the hearing and determination of the present application be pleased to allow the Applicant/Appellant to substitute and deposit the original title deed for her property, L.R. No. 209/12015, as a substitute for the cash security. This property is located in Nairobi along Jogoo road measuring 1.4 acres* 6. *THAT upon the hearing and determination of this Application, the Honourable Court be Pleased to issue orders restraining the Respondent by themselves, their employees and or agents from attaching, auctioning, selling, transferring and or in any other form interfering with the Applicants Properties.* 7. *THAT the costs of this application be provided for.* 8. *THAT this Honourable Court be pleased to make such further or other orders as it may deem fit and just to grant.* 9. The application was supported by the grounds on its face and the Supporting Affidavit of *Lucy Jepkemboi Ruto*, sworn on 13th August 2025. The Applicant deposed that she is a retired civil servant earning a modest monthly pension of Kshs. 35,000/- which rendered her unable to raise the Kshs. 7,000,000/- cash security ordered by the Court. 10. She proposed to substitute the monetary deposit with the original title deed for her property, L.R. No. 209/12015, situated along Jogoo Road, Nairobi. She averred that the property has an open market value exceeding Kshs. 200,000,000/- which provided more than adequate security for the Respondent’s interests. It was her case that the Respondent had initiated execution proceedings and obtained warrants of attachment which posed an imminent, irreparable threat to her property, reputation, and financial security. *The Submissions* 1. Through written submissions dated 27th January 2026 the Applicant argued that the Court wields discretionary power, as was observed in *Butt -vs- Rent Restriction Tribunal [*1982] KLR 417, to grant a stay of execution to prevent an appeal from being rendered nugatory. The Applicant submitted that substantial loss would occur if execution proceeded. She contended that arguing as a retiree of meagre means, she would be driven from the seat of justice unheard. 2. On the substitution of security, the Applicant argued that the purpose of security under Order 42 Rule 6(2) of the Civil Procedure Rules is solely to guarantee the due performance of the decree, not to punish the judgment debtor. Relying on *Kiplangat Shelisheli Mutarakwa -vs- Joseph Rotich Kones* [2018] eKLR, the Applicant submitted that holding the title deed was *prima facie* evidence of her absolute proprietorship under Section 26 of the Land Registration Act. 3. Pressing for injunctive relief, the Applicant invoked the longstanding test in *Giella -vs- Cassman Brown* (1973) EA 358, to argue that she had established a *prima facie* case, stood to suffer irreparable harm, and that the balance of convenience tilted in her favour. **The Respondent’s case:** 1. *Jesse Mburu Gitau* opposed the application through a Replying Affidavit he swore on 23rd October 2025. It was his case that the application is frivolous, vexatious, an abuse of the Court process, and was caught up by the doctrine of *res judicata*. He deposed that it was an attempt to re-litigate the earlier application dated 9th June 2025. He asserted that the Court’s directive of 16th July 2025 was a consent order, and the Applicant had neither complied with it nor formally sought to set it aside or review it. 2. The Respondent disputed the existence and value of the proposed alternative security. It was his case that the Applicant failed to attach the actual title deed, a current official search, or a valuation report to her application. 3. He further averred that substituting a liquid cash decree with a title deed would occasion severe delays, entail a complicated liquidation process, and risk value discrepancies, thereby frustrating his right to expeditiously enjoy the fruits of his judgment. *The Submissions* 1. The Respondent urged his case further through written submissions dated 3rd February 2026. He reiterated that the application is technically incompetent and *res judicata*. Placing reliance on the Supreme Court’s holdings in *Kenya Commercial Bank Limited -vs- Muiri Coffee Estate Limited & Another* [2016] eKLR and *Independent Electoral & Boundaries Commission -vs- Maina Kiai & 5 Others* [2017] eKLR, the Respondent submitted that the doctrine of *res judicata* creates a complete estoppel against multiplicity of suits, preventing parties from re-litigating issues that have been finally determined. 2. The Respondent argued that since the issue of stay of execution was compromised and concluded *via* the consent order of 16th July 2025, which remains valid and unchallenged, the present application lacked a legal foundation. 3. Addressing the prayer for substituted security, the Respondent relied on the precedent in *Arun C Sharma -vs- Ashana Raikundalia T/A A Raikundalia & Co Advocates & 2 Others [*2014] KEHC 2430(KLR) and *Gateri -vs- Otuke* (Civil Appeal E045 of 2025) [2025] KEHC 14949 (KLR) to submit that security should not be illusory, nor should it cause undue hardship to the successful party in recovering a judgment debt. 4. The Respondent emphasized the holding in *Muriungi -vs- Meru Highlands Dairy Limited* (Civil Appeal E113 of 2023) [2024] KEHC 56 (KLR), where it was observed that Courts must not be converted into informal chargees that would require protracted legal steps to realize a security. 5. In addition to the foregoing the Respondent drew support from *Kiilu -vs- Osoro (Suing as Legal Representative of the Estate of Deborah Shisiah Osolo) & Another* (Civil Appeal E001 of 2021) [2023] KEHC 2679 (KLR), to assert that the Applicant’s failure to annex the title deed, a current land search, and a valuation report left the Court operating in a vacuum. It was his case that it disentitled her to the equitable exercise of the Court’s discretion. **Analysis and Determination:** 1. Having carefully considered the pleadings, the affidavits on record, and the rival submissions, the following issues crystalize for determination: - *[i] Whether the Notice of Motion dated 12th August 2025 is res judicata and/or legally incompetent in light of the subsisting consent order of 16th July 2025.* *[ii] Depending on (a) above, whether the Applicant has met the threshold for substitution of the monetary security order with the title deed for L.R. No. 209/12015.* 1. A consideration of the issues now follows. **[a] Whether the Notice of Motion dated 12th August 2025 is *res judicata* and/or legally incompetent in light of the subsisting consent order of 16th July 2025:** 1. On the primary issue of competence and *res judicata*, it is common ground that this Court, on 16th July 2025, recorded a consent order disposing of the Applicant’s prior application for a stay of execution dated 9th June 2025. The consent explicitly tied the grant of a stay of execution to the Applicant depositing Kshs. 7,000,000/- in Court within 30 days. 2. A consent order is fundamentally a binding order by the Court between parties. In order to impeach it, a party must demonstrate settled legal principles including fraud, collusion or an agreement contrary to Court policy. The Court of Appeal in ***Board of Trustees National Social Security Fund -vs- Micheal Mwalo***[2015] KECA 782 (KLR)discussed the place of consent orders and judgment as hereunder: - *29. The judgment arose from a consent of the parties to the suit. The law pertaining to setting aside of consent judgments or consent orders has been clearly stated. A Court of law will not interfere with a consent judgment except in circumstances such as would provide a good ground for varying or rescinding a contract between parties. To impeach a consent order or a consent judgment, it must be shown that it was obtained by fraud, or collusion or by an agreement contrary to the policy of Court.* 1. By filing a fresh application on 12th August 2025, seeking the same primary relief (a stay of execution) while unilaterally attempting to alter the agreed-upon security terms, without bringing herself within the parameters that would allow a Court to alter a consent order, the Applicant effectively attempted to review the orders this Court through the back door. Therefore, whereas the application for substitution of the security is not *res judicata*, the approach taken by the Applicant has the effect of varying the consent order on record outside the parameters provided in law. In other words, first things first, the Applicant cannot place the cart before the horse. To that end, the Applicant ought to be stopped. 2. Having so found, the application lacks competency and should fail. However, out of abundance of caution and for completeness of record, this Court will consider the other issue. **[b] Whether the Applicant has met the threshold for substitution of the monetary security order with the title deed for L.R. No. 209/12015:** 1. Even if this Court were to overlook the foregoing procedural misstep, the application collapses on substantive evidential grounds. The Applicant deposed that her property is worth Kshs. 200,000,000/-. In paragraph 7 of the Applicant’s supporting Affidavit, she referenced an annexed title deed marked “LJR-2”. However, as the Respondent correctly pointed out, the Applicant failed entirely to exhibit the actual title deed, a current official search confirming ownership and encumbrance status, or a valuation report from a registered valuer to substantiate the claimed market value. 2. This Court is, therefore, unable to make an assessment as to the sufficiency or adequacy of the proposed substitution. Consequently, the Applicant’s omission is fatal to her request. 3. The foregoing notwithstanding, this Court is reminded that the underlying decree is a monetary one. In *Arun C Sharma -vs- Ashana Raikundilia T/A Raikundalia & Co. Advocates & 2 Others* [2014] KEHC 2430 (KLR) and *Gateri -vs- Otuke* [2025] KEHC 14949 (KLR), decisions relied upon by the Respondent, Courts are discouraged from converting liquid monetary decrees into immovable property securities. In the former it was observed; *… The Respondent, on the other hand, has a right to the fruits of its judgment which should not be taken away; and where the right is postponed, it can only be upon adequate security for the due performance of such decree or order as may ultimately be binding on the Applicant. There is no legally binding assignment of the proprietary rights in the proposed security which the court may consider adequate to secure the due performance of such decree or order as may ultimately be binding on the Applicant.* 1. Accepting a title deed, which in this case is not even verifiable inevitably forces the decree-holder, and the Court, into the protracted, costly, and cumbersome rigors of liquidation. The security offered must guarantee due performance without causing undue hardship in recovery. Consequently, this Court finds that the Applicant’s alternative proposal is untenable. **Disposition:** 1. The Applicant has failed to demonstrate sufficient cause to warrant the setting aside of the consent order on record and the substitution of the monetary security with the proposed title deed. The application lacks both substantive legal merit and the requisite evidentiary foundation. 2. Accordingly, the following final orders hereby issue: - 3. **The Notice of Motion dated 12th August 2025 is hereby dismissed.** 4. **The Applicant is hereby directed to comply with the existing Court Order dated 16th July 2025 within 21 days of this order failure to which execution to issue.** 5. **Costs of this application to the Respondent.** Orders accordingly. **DELIVERED**, **DATED** and **SIGNED** at **NAIROBI** this **9th** day of **September, 2026.** **A. C. MRIMA** **JUDGE** **Ruling virtually delivered in the presence of:** **Mr. Rukwaro,** LearnedCounsel for the Respondent. **Ms Sang** holding brief for Mr. Tilly, Learned Counsel for the Applicant/Appellant. **Michael/Amina** –Court Assistants.