Muturi v Mitei (Civil Appeal E212 of 2024) [2026] KEHC 10839 (KLR) (10 July 2026) (Ruling)

Muturi v Mitei (Civil Appeal E212 of 2024) [2026] KEHC 10839 (KLR) (10 July 2026) (Ruling) Neutral citation: [2026] KEHC 10839 (KLR) Republic of Kenya In the High Court at Eldoret Civil Appeal E212 of 2024 JM Chigiti, J July 10, 2026 Between Francis Kiarie Muturi Appellant and Lydia Chepkurui Mitei Respondent Ruling 1.The Applicant moved this Court by a Notice of Motion dated 20th August, 2025 brought under Sections 79G and 3A of the Civil Procedure Act, Order 42 Rule 6(2) and Order 50 Rule 6 of the Civil Procedure Rules seeking the following orders: -1.........Spent.2.That this honourable court be pleased to enlarge the time for filing an appeal out of time against the judgement in Eldoret CMCC 590 of 2022 Lydia Chepkurui Mitei v Francis Kiarie Muturi delivered on 9th October,2024.3.That this honourable court be pleased to issue an order of stay of the judgement delivered on 9th October,2024 in Eldoret CMCC 590 of 2022 Lydia Chepkurui Mitei v Francis Kiarie Muturi delivered on 9th October,2024. Together with the decree and or all orders emanating therefrom pending the hearing and determination of this application interparties and the intended appeal.4.That the honourable court sets aside the Notice to Show Cause dated 7th May, 2025 scheduled for 27th August,2025.5.That costs of the application be in the cause. The appellant/applicant’s case; 2.The application is supported by the affidavit of the Applicant sworn on 20th August, 2025. The Applicant deposes that judgment was delivered on 9th October,2024; that the statutory period for filing an appeal lapsed before an appeal could be lodged; that the delay was occasioned by reasons beyond the Applicant's control; that the intended appeal raises arguable issues of law and fact; and that unless stay is granted, execution will proceed rendering the intended appeal nugatory. The Respondent’s case; 3.The Respondent opposed the application through a replying affidavit sworn on 19th February,2026 contending among other contention that the application has not been brought in good faith and is full of malice and without basis whatsoever, is an afterthought, that the applicant has not approached the court with clean hands, that the application has been overtaken by events that the appeal was filed out of time the delay has not been satisfactorily explained, and that the Applicant has failed to satisfy the requirements for grant of stay and she finally contended that the application is res judicata. 4.Parties took directions on 21st April,2026 to canvass the application by way of written submissions. The applicant filed submissions dated 9th June, 2026 while the respondent filed submissions dated 8th May, 2026. Analysis 5.Upon considered the Motion, the affidavits on record and the parties' submissions, The Court identifies two issues for determination:Whether the application is barred by the doctrine of res judicata; andWhether the Applicant has established a basis for the grant of the orders sought. Whether the application before the Court is barred by the doctrine of res judicata. 6.The doctrine of res judicata is codified under Section 7 of the Civil Procedure Act, which provides that:“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.” 7.The doctrine is founded upon the public policy that there must be an end to litigation. It serves to prevent parties from repeatedly litigating the same issues before courts of competent jurisdiction and protects the integrity and finality of judicial decisions. 8.For the doctrine to apply, the following elements must be satisfied:i.There must have been a previous suit or application.ii.The matter directly and substantially in issue must be the same.iii.The former suit must have involved the same parties or parties claiming under them.iv.The parties must have litigated under the same title.v.The issue must have been heard and finally determined.vi.The previous court must have been competent to determine the issue.vii.These principles have been consistently affirmed by the superior courts. 9.The record before this Court shows that by an application dated 9th October, 2024, the Applicant sought for orders of stay of execution of the judgement delivered on 9th October, 2024 pending the hearing of the application and pending the hearing and determination of the appeal. That application was heard inter partes, and by a ruling delivered on 4th December, 2024 this Court allowed the application on terms that were to be met by the applicant herein. 10.A comparison of the earlier application and the present one demonstrates that the parties are identical. The capacity in which they litigate has not changed. But more importantly, the issues presented for determination are not the same. 11.It is trite that Court cannot permit a litigant dissatisfied with an earlier determination to invite a court of concurrent jurisdiction to reconsider issues that have already been conclusively determined. To do so would offend the principle of finality in litigation and amount to an abuse of the court process. 12.The Court has carefully considered the pleadings in the present application alongside the prayers in the previous application While the Respondent contends that the issues herein were previously determined, the Court finds that the present application, though related, raises incidental and consequential issues arising from a different procedural posture and/or subsequent events. 13.In the premises, the Court is not persuaded that the strict threshold of res judicata has been satisfied. Accordingly, the contention on res judicata fails and is hereby dismissed. 14.Having disposed of the objection, the Court proceeds to consider the substance of the application. 15.The Applicant seeks orders of leave to appeal out of time and stay of execution pending appeal. It is trite that the grant of such orders is discretionary and depends on whether the Applicant has placed sufficient material before the Court to justify the exercise of judicial discretion. Whether leave to appeal out of time should be granted. 16.Section 79G of the Civil Procedure Act requires appeals from subordinate courts to be filed within thirty (30) days from the date of the decree or order appealed against. The proviso empowers the Court to admit an appeal out of time where an appellant demonstrates good and sufficient cause for failing to file the appeal within the prescribed period. 17.The discretion to enlarge time is judicial and must be exercised upon sound legal principles. Among the relevant considerations are the length of the delay, the explanation offered, the arguability of the intended appeal and the prejudice likely to be occasioned to the respondent. 18.Such power to extend time for filing an appeal is an exercise of discretionary power by the court. It is a power exercised by courts for the purpose of doing justice to all the parties, and is not exercised merely on sympathy, and or otherwise to obstruct or delay the cause of justice. 19.I adopt the leading supreme court authority in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others – where The Supreme Court held that:“Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court.” 20.County Executive of Kisumu v County Government of Kisumu & Others. The Supreme Court reaffirmed the principles in Nicholas Salat and emphasized that an applicant must satisfactorily explain the delay before the court's discretion can be exercised. 21.Having said that, I note that the judgment sought to be appealed against was delivered on 9th October,2024 while the present application was filed on 20th August,2025 representing a delay of approximately 11 months beyond the statutory period. 22.The Applicant attributes the delay to inadvertence, health issues, financial constraints and difficulties in obtaining copies of the proceedings. However, the letter requesting for proceedings is not dated thus he has not demonstrated that proceedings or the judgment were applied for promptly, or that the delay was occasioned by the court registry. Equally absent is any explanation accounting for each period of inactivity between the delivery of judgment and the filing of the present application. 23.The Court is not persuaded that a general allegation of inadvertence or financial hardship, unsupported by cogent evidence, constitutes sufficient cause under Section 79G of the Civil Procedure Act. Litigation demands diligence. A party seeking the Court's discretion must satisfactorily explain the entire period of delay. 24.While the Court need not determine the merits of the intended appeal at this stage, it must be satisfied that the intended appeal is not frivolous. The draft memorandum of appeal largely challenges findings of fact without identifying any apparent error of law or misdirection warranting the exercise of this Court's discretionary jurisdiction. 25.In the premises, I find that the Applicant has failed to demonstrate good and sufficient cause for the delay in filing the intended appeal. Whether stay of execution should issue 26.The prayer for stay of execution is anchored on Order 42 Rule 6(2) of the Civil Procedure Rules. The Applicant must demonstrate:i.That substantial loss may result unless the order is granted;ii.That the application has been made without unreasonable delay; andiii.That security has been offered for the due performance of the decree. 27.These conditions are cumulative. Failure to satisfy any one of them is fatal to the application. 28.The Applicant merely states that execution will occasion substantial loss and damage. However, substantial loss cannot be presumed. It must be demonstrated by evidence. The Applicant has not shown how payment of the decretal sum would irreparably prejudice him or why the Respondent would be incapable of refunding the decretal amount should an appeal eventually succeed. 29.I adopt the holding in Machira t/a Machira & Co Advocates v East African Standard [2002] KEHC 1167 (KLR) where the good judge held that:“In attempting to convince a court that substantial loss is likely to be suffered so that whatever he intends to achieve by his intended recourse to some other authority will be nugatory if ultimately he prevails, the applicant is under a duty to do more than merely repeating to the court words of the relevant statutory rule or general words used in some judgment or ruling of a court in a decided case cited as a judicial precedent to guide. It is not enough merely to state that substantial loss will result, or that the appeal if successful will be rendered nugatory. That will not do.”“If the applicant cites, as a ground, substantial loss, the kind of loss likely to be sustained must be specified, details or particulars thereof must be given, and the conscience of the court, looking at what will happen unless a suspension or stay is ordered, must be satisfied that such loss will really ensue and that if it comes to pass, the applicant is likely to suffer substantial injury by letting the other party proceed further with what may still be remaining to be done or in execution of an awarded decree or order, before disposal of the applicant’s business (eg appeal or intended appeal).” 30.The Court has already found that the application was filed after unexplained delay. The requirement that an application for stay be brought without unreasonable delay has therefore not been satisfied. 31.Further, the Applicant has not expressed any willingness to provide security, no concrete proposal has been made. Thus, the applicant has not satisfied the other mandatory requirements. 32.More fundamentally, stay of execution is ordinarily intended to preserve the subject matter pending an existing or intended competent appeal. Having found that the Applicant has not established sufficient grounds for extension of time to institute an appeal, there exists no competent appeal capable of being preserved through an order of stay. The prayer for stay therefore lacks a proper legal foundation. 33.Further, the applicant herein though a ruling delivered on 4th December, 2024 allowing his application dated 9th October,2024 was required to fulfil certain terms which he did not prompting the respondent to move the trial court which issued a Notice to Show Cause dated 7th May,2025 which was heard on 27th August,2025 and warrants of arrest issued. 34.In Machira t/a Machira & Co Advocates v East African Standard [2002] KEHC 1167 (KLR)(Supra) it was held that:“As a further consideration of the principle of justice and fairness, the court abhors inexcusable delay in seeking an order for a stay. Such delay is an aspect of injustice and abuse of judicial process. The other party may take further steps in reliance on the belated applicant’s inactivity prolonged without good reason. Costs might be incurred in the meantime. There might be a change of position to the prejudice of the other party.” 35.The Court must also bear in mind that a successful litigant is entitled to enjoy the fruits of a judgment. That right should not be impeded except upon sufficient cause being demonstrated. No such cause has been established in the present application. 36.This Court is a temple of justice and as a temple of justice the court is required to weigh justice on both sides of the coin. Disposition; 37.In the result, the Court finds that the Applicant has failed to satisfy the requirements for extension of time under Section 79G of the Civil Procedure Act and has equally failed to meet the threshold for grant of stay of execution under Order 42 Rule 6 of the Civil Procedure Rules. 38.The Court is mindful that judicial discretion must be exercised judiciously and not in a manner that revives settled issues or prejudices the opposing party without sufficient justification.In the circumstances of this case, the Court is not satisfied that the Applicant has met the threshold for the grant of the orders sought. 39.Accordingly, the Notice of Motion dated 20th August, 2025 is hereby dismissed. 40.The interim orders of stay, if any, are hereby discharged. 41.The Respondent shall be at liberty to proceed with execution of the decree in accordance with the law. 42.The Applicant shall bear the costs of this application.It is so ordered. DELIVERED, DATED AND SIGNED ON THIS 10TH DAY OF JULY, 2026 AT ELDORET HIGH COURT……………………………………J. M. CHIGITI (SC)JUDGE