Maritim & 3 others v Barsula (Civil Appeal E120 of 2025) [2026] KEHC 7858 (KLR) (3 June 2026) (Ruling)

Maritim & 3 others v Barsula (Civil Appeal E120 of 2025) [2026] KEHC 7858 (KLR) (3 June 2026) (Ruling) Neutral citation: [2026] KEHC 7858 (KLR) Republic of Kenya In the High Court at Eldoret Civil Appeal E120 of 2025 E Ominde, J June 3, 2026 Between John Kipserem Maritim 1st Appellant Meshack Cheruiyot 2nd Appellant Gilbert Kiplagat 3rd Appellant William Serem 4th Appellant and Wilfred Jepkoech Barsula Respondent Ruling 1.The application before this Court is the Notice of Motion application dated 17th June 2025, brought pursuant to provisions of Section 1A, 1B , 3A. 3B and 80 of the Civil Procedure Act, Order 42 Rule 6 of the Civil Procedure Rules. The Applicants seek the following orders:1.Spent.2.Spent.3.Spent.4.There be an order of stay of execution of the Judgment entered on 26th January 2023 and the Decree/Certificate of Costs issued thereto on 21st February 2023 in Eldoret CMCC No.962 of 2016; Winfred Jepkoech Barsulai vs. John Kipserem Maritim and 3 Others, pending the gearing and determination of this Appeal.5.Costs of this application be awarded to the Appellants/Applicants. 2.The application is supported by the grounds on the face of it and the Supporting affidavit of William Serem, the 4th Applicant dated 17th June 2025. 3.The 4th Applicant stated that he has the express authority of the 1st, 2nd and 3rd Applicants herein to swear this Affidavit on their behalf. He deposed that the Respondent commenced the instant suit against them vide her Plaint dated 2nd September 2016. That they were served with Summons to enter Appearance and pleadings in the matter and they instructed the firm of M/S Cheluget and & Co. Advocates to come on record on their behalf and they entered appearance on 14th September 2016 and filed their Statement of Defence on 27th September 2016 which was within the statutory times. 4.He deposed that they subsequently changed their representation and instructed the law firm of M/s Lel & Associates to take conduct of the matter. That they filed the requisite the Notice of Change of Advocates dated 9th January 2018. That because the Counsel Lel soon thereafter joined Public Service, they later instructed the law firm of M/s Kiprop Luseria & Company Advocates to take over conduct of the matter after. 5.That as at 25th October 2016 they complied with Order 11 of the Civil Procedure Rules, 2010 thus demonstrating their readiness and desire to defend the matter to its logical conclusion. That unfortunately they did not subsequently get any communication from the firm of their Advocates M/s Kiprop Luseria Advocates on the progress of their case despite their constant follow ups. That they were surprised to receive a call on 21st November 2024, from a person who identified himself as an Auctioneer indicating that he had received instructions from the Plaintiff’s Advocates to carry out execution against them and that they eventually received Warrants of Attachment and a Proclamation Notice on 22nd November 2024 from Joyland Auctioneers. 6.He deposed that the above developments prompted them to visit the Court Registry on 22nd November 2024 to inquire about the matter and that upon perusal of the Court file, they discovered that a Judgment had been against them on 26th January 2023. He stated that upon further perusal of the Court file, they discovered that the Decree and Certificate of Costs was issued against them on 26th January 2023 for payment of a cumulative sum of Kshs. 664,411/- and that they further learnt from the Court record that the matter proceeded ex parte due to the non-attendance on their Counsel who was served with Hearing Notices but she did not communicate the same to them leading to their failure to attend Court on the material dates. 7.He further deposed that they immediately lodged and Application before the Trial Court seeking to set aside the ex parte judgment. That the trial Court issued an order of stay of execution of the judgment pending the hearing and determination of the Application but after the inter parties hearing of the said application, in its ruling on delivered on 13th May 2025, the same was dismissed thereby foreclosing their right to be heard and re-opening the door for execution. 8.He contended that the trial Court failed to take cognizance of the fact that they had a Statement of Defence on record which raised triable issues on both liability and quantum of damages and so they should be heard on merit. Further, that the trial Court failed to take cognizance of the fact that failure to attend Court was occasioned by the mistake of their Advocate hence they should be permanently penalized for it and that Court also failed to take cognizance of the fact that no prejudice or irreparable harm would be suffered by the Respondent if the ex parte judgment was set aside noting that she retains an effective right to be heard on merit. 9.He further stated that there is an imminent risk that the decree and Certificate of Costs will be executed anytime leading to attachment of their properties and possibly committal to civil jail and added that the execution of the Decree and Certificate of Costs will in effect deprive them of their right to be heard as envisaged under Article 50(1) of the Constitution of Kenya and that the instant Application and indeed the entire Appeal will be rendered nugatory if the impugned Judgment/Decree and Certificate of costs are executed before its hearing and determination. The 4th Applicant urged they will they suffer an irreparable harm if the Application is not heard urgently and the interim orders sought herein granted. He deposed that they are willing and ready to abide by any condition to be set by this Court including provision of reasonable security for costs if necessary. Replying Affidavit 10.The Application is opposed by the Respondent vide her Replying Affidavit sworn on 25th July 2025.The Respondent deposed that in the instant application, the Applicants seeks the same reliefs sought and denied in their earlier application dated 21st November 2024 that was before the lower Court and thus the instant application is res-judicata and abuse of Court process as it raises similar issues, between the same parties and seeks identical prayers as were determined by the Subordinate Court in its Ruling delivered on 13th May 2025. The Respondent maintained that the trial Court after considering the Applicant’s Application dated 22nd November 2024 on its merits, found and rightly held that service was properly effected and that both procedural and substantive law were followed in entering the judgment against the Applicants. 11.She contended that the Applicants herein are essentially inviting this Court to sit on appeal over the ruling of the Trial Court without having filed any appeal or review of that decision and that this is an abuse of the Court process and contrary to the doctrine of finality of litigation. The Respondent contended that once a Court has rendered a final determination on matter between the same parties, the same cannot be re-litigated as in the case here, 12.The Respondent thus raised a Preliminary Objection on grounds that the instant application is res judicata and offends the provision of Section 7 of the Civil Procedure Act. 13.The Respondent contended that the continued filing of repetitive and frivolous applications by the Applicants is not only delaying the enjoyment of the fruits of her judgment but also amounts to an abuse of the Court process for which they ought to be dismissed with costs. The Respondent thus urged the Court to dismiss the Applicant’s application dated 17th June 2025 with costs and uphold the Ruling of the trial Court delivered on 13th May 2025. The Respondent thus restated that the instant application has been brought in bad faith, to arbitrarily defeat, frustrate and abuse the Course of justice and Court process. 14.The Application was canvassed by way of written Submissions. The Applicant filed Submissions dated 19th November 2025 whereas the Respondent filed Submission dated 12th June 2025. Applicant’s Submissions 15.Counsel for the Applicants filed very lengthy submissions and I will therefore summarise the salient points only. On the issue of jurisdiction, Counsel submitted that the same is founded on Section 3A of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules and submitted that the court has the jurisdiction to exercise of its inherent discretion to grant the order for stay pending Appeal to protect the substratum of the Appeal and contended that the trial Court's decision which dismissed the Application to set aside the ex-parte judgment has foreclosed the Appellants right to be heard and has in this regard re-opened the door for execution. He relied on the case of Nixon Murathi Kiratu v Director of Criminal Investigations & 2 others; Mercy Nyakio Mburu & another (Interested Parties) [2019] eKLR. 16.Counsel maintained that the fact that the trial court declined to grant the Order of setting does not divest this court of the jurisdiction to entertain this Application on the basis that it amount to res judicata noting that the two courts are not concurrent court and that this court is empowered by the Civil Procedure Rules as envisaged under Order 42 Rule 1 of the Civil Procedure Rules. Counsel urged the court to return a finding that it has the jurisdiction to stay the judgment entered on 26th January 2023. He cited Butt v Rent Restriction Tribunal (1982) KLR in this regard 17.Counsel further submitted that the allegation that this Application offends the doctrine of res judicata in view of the fact that the Appellants/Applicants first lodged an Application seeking to stay of execution at the trial court before lodging this one is incorrect because lodging an appeal to a higher court doesn't offend the doctrine of res judicata in view of the fact that there is no finality to that decision as the decision is subject to an appeal on its merits and more particularly because the Appellants herein were not given a chance to be heard. He cited the Supreme Court in the case of John Florence Maritime Services Limited and another versus the Cabinet Secretary, Transport & Infrastructure and Three Others in this regard 18.Counsel maintained that in the instant Application, as opposed to the Application that was heard before the Trial Court wherein the Applicant was seeking that the ex parte judgement therein entered be set aside, the Appellant is seeking for an order of stay pending the hearing and determination of the Appeal. Counsel submitted that the reliefs sought in the two Applications are separate and distinct and the courts before which they have been brought are not of concurrent jurisdiction thus negating the plea of res judicata. 19.Counsel urged that it is instructive to note that the Appellants did not seek an order of stay of execution pending hearing of the Appeal before the trail court and argued that in any event, even if that were to be the case, where a party seeks for and is denied an order of stay pending Appeal by the trial court, the party has a right to move the Appellate court for the orders of stay. He relied on the cases of Aggrey Chiteri v. Republic [2016] eKLR and Edward Okongo Oyugi & 2 Others v. The Attorney General [2016] eKLR. Counsel therefore submitted that there was no finality in the Ruling delivered by the Trial Court on 13th May 2025 and so the Appellant being dissatisfied with it has lodged an Appeal before this Court. He relied on case of RWW -vs- EKW [2019] eKLR. 20.Regarding the principles that guide the Court in issues stay of execution pending the hearing an appeal, Counsel cited Order 42 rule 6 of the Civil Procedure Rules. On the requirement that an Applicant must demonstrate that their appeal is arguable, Counsel relied on Stanley Kangethe Kinyanjui-v-Tony Ketter & 5 Others [2013] KECA 378(KLR) and the Court of Appeal decision in Masai & Another -vs-Masai & Another (Civil Application 148of 2020) [2021] KECA 170 (KLR) and submitted that the Appellants herein have an arguable appeal with a high likelihood of success. 21.He urged that the trial court failed to take cognizance of the fact that the Appellants/ Applicants had a Statement of Defence which raises triable issues on both liability and quantum of damages hence they ought to have been heard on merits, that the failure to attend court was occasioned by a mistake of the advocate, He also relied on the case of International Air Transport Association & another v Sayari Africa Limited &x 2 others [2021] eKLR and CMC Holdings Ltd vs. Nzioki [2004] KLR 173 and reiterated that no prejudice or irreparable harm would be suffered by the Respondent if the Ex-parte Judgment is set aside 22.Counsel further relied on the case of Mainkam Limited & Another v Multichoice Kenya Limited [2020] eKLR where the court held that even where only one ground out of the many grounds of appeal filed appears to the court to be arguable, then the threshold of granting an order of stay on the basis of the existence of an arguable appeal has been met. 23.On the issue of substantial loss, Counsel submitted that the nature of the loss that will be visited upon the Appellants/Applicants should the Application be declined is enormous. That the claimant is facing an imminent risk of losing everything including their household goods and animals as can be gleaned from the notice of proclamation annexed to the Supporting Affidavit. 24.Counsel further urged that entire Appeal will be rendered nugatory if the impugned Judgment/ Decree and Certificate of Costs are executed before hearing and determination of the Appeal. He relied on the case of Reliance Bank Ltd v Norlake Investments Ltd (2002) E.A. 227. 25.On the issue of unreasonable delay, Counsel submitted that issue of delay has to be considered on a case by case basis. Counsel urged that what amounts to a delay in one matter may not necessarily be deemed as inordinate delay in the instant matter. He relied on the case of Utalii Transport Company Limited & 3 Others Vs NIC Bank Limited & Another [2014] eKLR. Counsel further submitted that the Honourable Trial Court delivered its Ruling on 13th May 2025 and the Appellant herein lodged the instant Application on 17th June 2025 which is barely one month later. He urged therefore that there was no unreasonable delay. 26.On the issue of security, Counsel submitted that the Appellants herein are willing to abide by any condition set out by the court as is expressed at paragraph 28 of the Supporting Affidavit. However, Counsel submitted that should the court deem it necessary to make an order for security, then the court should be lenient on it to avert a situation where the condition negates the very essence of the order for stay of execution. 27.Counsel further submitted that the right to heard is a fundamental right entrenched in the Constitution of Kenya at Article 50 and as emphasised in Wachira Karani vs. Bildad Wachira (2016) eKLR and contended that this right presupposes that a person should not be condemned before being accorded a fair chance to be heard and that this right can only be limited as by law provided and not in a whimsical manner. 28.He cited the decision of the Supreme Court of India in Sangram Singh vs. Election Tribuna1, Koteh, AIR 1955 SC 664, at 711 in support. That the act of the Trial Court denying them an opportunity to be heard offends the cardinal principles of the rules of natural justice and deprives them of their fundamental rights. He relied on the case of The Management of Committee of Makondo Primary School and Another-v-Uganda National Examination Board, HC Civil Misc. Application No.18 of 2010. Respondent’s Submissions 29.Counsel for the Respondent submitted that the application is res judicata. He cited Section 7 of the Civil Procedure Act in this regard and the case of Lotta vs. Tanaki [2003]2 EA 556. Counsel urged that a close examination of the Applicant’s annexure Marked as WJB-1 will reveal that it is a copy of an application similar to the instant application, filed by the same parties, raising similar issues directly and substantially raised by the instant application. Counsel added that said application was heard on merit and subsequently dismissed. Counsel submitted that the doctrine implies that for a matter to be res judicata, the issues in question must be similar to those which were previously in dispute between the same parties and the same having been similarly presented and determined on merits or otherwise by a court of competent jurisdiction. 30.He submitted that the courts have jealously guarded its procedure, practice and due process and consistently and firmly invoked the doctrine of res judicata whenever parties to the litigation brought forth, multiple suits/applications, in abuse of the judicial procedure, process, and practice. Counsel submitted that the instant application by the Applicant's is a clear breach of the rules, the laws and precedents/jurisprudence governing the doctrine of res judicata. 31.Counsel submitted that it is trite law that for an applicant to succeed in obtaining stay of execution pending appeal, they must satisfy the conditions stipulated under Order 42 Rule 6(2) of the Civil Procedure Rules. Counsel submitted that first and foremost, the cornerstone of an application for stay pending appeal is proof of substantial loss placing reliance on the case of Kenya Shell Ltd v Kibiru & Another [1986] KLR 410. 32.Counsel submitted that in the present case, the Applicants have made bare allegations of potential loss without providing any concrete evidence and added that they have neither demonstrated that execution would render the appeal nugatory, nor shown that they would suffer irreparable harm. Counsel submitted that the court in Antoine Ndiaye v African Virtual University [2015] eKLR underscored that it is not enough to merely state that one will suffer loss, the loss must be particularized and supported by evidence. 33.That further, the general rule is that the Court ought not to deny a successful litigant the enjoyment of fruits of his judgement save in exceptional circumstances where to decline to do so may well amount to stifling the right of the unsuccessful party to challenge the decision in the higher Court. 34.Secondly, Counsel submitted that the application ought to have been made without unreasonable delay. He pointed out that judgment was entered on 26th January 2023, while the present application was made on 17th June 2025. Counsel contended that this represents a delay of approximately two and a half years since delivery of judgment. Counsel urged that law requires that applications for stay be made expeditiously. 35.Counsel argued that the delay herein is both prolonged and unexplained, and as such, offends the provisions of Order 42 Rule 6(2). He relied on the case of Machira t/a Machira & Co. Advocates v East African Standard (No. 2) [2002] KLR 63 and the case of Kenya Commercial Bank Ltd v Sun City Properties Ltd & 5 Others [2012] eKLR. Counsel further argued that a delay of more than two years cannot be justified under any reasonable explanation, unless exceptional circumstances are demonstrated. Counsel contended that Applicants herein have not tendered any plausible reason for the delay, and therefore fail the first requirement. 36.Lastly, Counsel submitted that that it is trite law that where a litigant intends to exercise its undoubted right of appeal, and in the event it was eventually to succeed it should not be faced with a situation in which it would find itself unable to get back its money. Counsel added that likewise, a party who has a decree in his favour should not, if the applicant were eventually to be unsuccessful in its intended appeal, find it difficult or impossible to realize the decree. Counsel urged that this is the cornerstone of the requirement for security. Counsel submitted that in the instant case, the Defendant has not offered to furnish any security whatsoever pending the hearing and determination of the intended appeal. Counsel thus submitted that the instant application is thus unmerited and should be struck out with costs to the Respondent. Determination 37.Upon my consideration of the pleadings and submissions, I find that there are two issues that arise for determination as hereunder;a.Whether the Application herein is competently before the court and that the doctrine of res judicata is applicableb)Whether the Applicant has met the threshold for granting an order of stay of execution 38.I will start by addressing the issue for determination as raised in a) above and my finding thereon will inform the need to determine the issue raised in b). The principles that guide the doctrine of res judicata is as set out in Section 7 of the Civil Procedure Act Cap 21 Laws of Kenya 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.” 39.The Act thereafter goes ahead to give examples of how these principles are to be construed. The applicability of these principles were further expounded upon in case of re Estate of Riungu Nkuuri (Deceased) [2021] eKLR as hereunder;“The test for determining the Application of the doctrine of res-judicata in any given case is spelt out under Section 7 of the Civil Procedure Act. In Independent Electoral & Boundaries Commission vs Maina Kiai & 5 Others [2017] eKLR, the Supreme Court while considering the said provision held that all the elements outlined thereunder must be satisfied conjunctively for the doctrine to be invoked. That is:(a)The suit or issue was directly and substantially in issue in the former suit.(b)That former suit was between the same parties or parties under whom they or any of them claim.(c)Those parties were litigating under the same title.(d)The issue was heard and finally determined in the former suit.(e)The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.” 40.Before delving into the issues at hand, it is important to note that it is an Appellant/Applicant’s Memorandum of Appeal, in which an appellant’s grievance with an impugned decision of a trial court is usually expressed through the grounds of appeal as laid out in the said memorandum, that essentially demonstrates, underscores and guides the court on what it is that the court is sought to determine in the appeal. 41.It follows therefore that any prayers sought in an interlocutory application seeking interim orders pending the eventual hearing and determination of the appeal filed simultaneously with a Memorandum of Appeal must be premised upon and hinged on the appeal as filed. This is because the appeal is the scaffolding and substratum upon which the said application stands. Both the Application and the Appeal filed must therefore be in harmony and synchronicity. (See Order 42 Rule 1(2) of the Civil Procedure Rules). 42.In the instant case, in considering the Application now before the court dated 17th June 2025, the court notes that at prayer 3) thereof, the Application seeks for an order of stay of execution of the Judgement entered on 26th January 2023 and the Decree/Certificate of Costs issued thereto on 21st February 2023 pending the hearing and determination of the Appeal filed by the Applicant. 43.The Memorandum of Appeal filed by the Applicant/Appellant herein on the other hand, is that the appeal, as opposed to the Notice of Motion Application, is against the Ruling of the Court that was rendered on 13th May 2025 dismissing the Applicant’s Application seeking to set aside the trial court’s judgement of 26th January 2023 so that the Applicant is accorded an opportunity to be heard. 44.Clearly, what is apparent from my above observation is that the Application is at variance with the Appeal and this regard, the application then has no legs to stand on for reasons that its scaffolding and substratum, which is the appeal, is at variance with it. Indeed, under the provisions of Order 42 Rule 4 of the Civil Procedure Rules, the Appellant cannot be heard on any ground of objection not set forth in the Memorandum of Appeal except with leave of the court as can be seen below;Grounds which may be taken in appeal [Order 42, rule 4]The appellant shall not, except with leave of the court, urge or be heard in support of any ground of objection not set forth in the memorandum of appeal; but the High Court in deciding the appeal shall not be confined to the grounds of objection set forth in the memorandum of appeal or taken by leave of the court under this rule:Provided that the High Court shall not rest its decision on any other ground unless the party who may be affected thereby has had a sufficient opportunity of contesting the case on that ground. 45.In this instant no leave of the court was sought by the Appellant as envisaged under the above rule, nor did Counsel seek to amend the Applicant’s Application to conform with the Memorandum of Appeal. Further to this, the court also notes from the pleadings, as well as the submissions by both Counsel filed on behalf of the parties were very confusing, mixed up and convoluted. 46.That even as Counsel for the Respondent submitted on the Application as filed, to wit, seeking to set aside the Judgment of the trial Court, the plea of res judicata that he raised, was premised on the Ruling of the trial court which order of dismissal is what comprises the grounds set out in the Memorandum of Appeal. 47.Counsel for the Applicant on his part premised the greater part of his submissions on the Ruling of the trial Court that dismissed the Application and the plea of res judicata raised by the Counsel for the Respondent, and then almost in passing, submitted on the Application seeking to set aside the judgement which is actually the substratum of the appeal and therefore ought to have been the main thrust of their application seeking for orders of stay of execution. 48.From my above summation of the circumstances surrounding the Application dated 17th June 2025, it is clearly apparent that the said Application is not only convoluted and confusing, but it is also misconceived, incompetent and bad in law and the only available option is that it be struck out in its entirety. 49.It is my further finding that the court having found that the application is incompetent and bad in law, the plea of res judicata made by the Respondents is not applicable for reasons that it is difficult for the court to place it in the said the Application. In light of these findings then, I need not consider whether the conditions for the granting a stay of execution have been met. Accordingly, the Application is now hereby struck out with costs to the Respondents. READ DATED AND SIGNED VIRTUALLY AT BUNGOMA ON 3RD JUNE 2026E. OMINDEJUDGE