https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7715

Mwose v Kiongo & another (Civil Appeal E1001 of 2024) [2026] KEHC 7715 (KLR) (Civ) (2 June 2026) (Judgment) Neutral citation: [2026] KEHC 7715 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E1001 of 2024 AN Ongeri, J June 2, 2026 Between Peter N Mwose Appellant and Colleta Njeri Kiongo 1st Respondent John Kiongo Mungai 2nd Respondent (Being an Appeal from the Ruling of delivered by the Hon. E N Mutie on 30th July 2024 in Nairobi MISC APPL. E155 of 2024) Judgment 1.The appellant, Peter N. Mwose, filed an Application dated 14th May 2024 seeking to set aside the trial court’s orders issued on 9th May 2024, permanently stay proceedings, and have the court process server summoned for cross-examination. 2.The trial court began by noting that the application was not opposed but proceeded to analyze whether the prayers sought could be granted. 3.Regarding the second prayer, which sought to set aside the orders issued on 9th May 2024 pending an inter partes hearing, the court found that this prayer had been overtaken by events. 4.On the third prayer, which sought to permanently stay proceedings in the matter, the court observed that it had already allowed the application dated 30th January 2024 filed by the 1st and 2nd respondents, and that the orders had been enforced. 5.Consequently, there were no proceedings remaining to be stayed, and the court stated that it could not make orders in vain. 6.As for the fourth prayer, requesting that the court process server be summoned for cross-examination, the court reasoned that granting such an order would serve no purpose, as any evidence elicited would merely be taken down and not be put to use. 7.The court explained that this prayer would only be meaningful if there were another pending prayer for the court to determine after such cross-examination or an inter partes hearing, and therefore found that granting this order would be an exercise in futility. 8.Flowing from the foregoing, the court dismissed the appellant’s application dated 14th May 2024 in its entirety, and ordered the parties to bear their own costs. 9.The appellant has appealed against the said Ruling on the following grounds;i.That the learned Trial Magistrate erred in law and in fact in not allowing the application dated 14th May 2024 as prayed in the absence of the respondent who had given numerous opportunities to respond and appear at a scheduled interparty hearings.ii.That the learned Trial Magistrate erred in fact and law by not issuing temporary stay in a matter that the Appellant’s Supporting Affidavit had demonstrated that there was no service, it was urgent and it could suffer irreparable damages.iii.That the learned Trial Magistrate erred in law and in fact by finding that the orders as prayed were not deserving on the grounds that the Orders had already been enforced without the benefit of the Response and appearance from the Respondent.iv.That the learned Trial Magistrate erred in law and in fact by not granting prayer for Permanent stay of proceedings and demanding a prayer for Permanent injunction pending the hearing and determination of the suit when she well knew that the case lacked the benefit of a Plaintiff and our pleadings had questioned the validity of orders she had issued without the Plaintiff, originating summons and or petition in a miscellaneous application.v.That the learned Trial Magistrate erred in law and in fact by not finding that the prayer to cross-examine the Process-server was not tenable as there was no interparties hearing, forgetting the parties never had an opportunity to ventilate this issue, hence contradicting herself.vi.That the learned Trial Magistrate erred in law and in fact by not allowing the application and or vacating the earlier orders issued in error since there was nothing pending for the Court.vii.That the learned Trial Magistrate having decided to write a Ruling using the Supporting affidavit of the applicant alone erred in law and in fact by not considering the gravity of the issues raised therein e.g.: [1] res judicata; [2] abuse of Court process; [3] Orders sought had been overtaken by events.viii.That the learned Trial Magistrate erred in law and in fact by flouting all the principles as laid down in the famous case of Giella and Cassman Brown and reiterated in the Ngurumani case. 10.The appellant filed written submissions that the learned magistrate erred in law and fact on several grounds, including allowing the respondent to evade court attendance without consequences, failing to uphold legal principles, and appearing to act on behalf of the respondent. 11.The appellant contends that the initial application was granted despite evidence that he had not been properly served, and that his own application to vacate irregularly granted enforcement orders was wrongly dismissed. 12.He further asserts that the magistrate improperly issued permanent orders in a miscellaneous application that lacked foundational pleadings such as a plaint, originating summons, or petition, contrary to established practice. 13.The appellant also raises the doctrine of res judicata, noting that the same parties and subject matter had already been heard and determined by the same court, yet the magistrate failed to apply Section 6 of the Civil Procedure Act. 14.Additionally, he claims the court did not consider his affidavit or the principles set out in the Giella vs. Cassman Brown case. 15.Emphasizing the constitutional right to be heard under Article 159 of the Constitution and the Civil Procedure Act, the appellant concludes that the appeal should be allowed with costs. 16.The respondent did not file any submissions in this appeal and therefore the same is unopposed. 17.The issues for determination in this appeal are as follows;i.Whether the trial court erred in dismissing the application for stay of proceedings and cross-examination of the process server.ii.Whether the trial court violated the appellant's right to be heard under Article 50(1) of the Constitution. 18.On the first issue, the Court finds that the trial magistrate properly exercised her judicial discretion in dismissing the application. 19.The appellant sought a permanent stay of proceedings, yet the trial court correctly observed that the orders of 9th May 2024 had already been enforced and there were no remaining proceedings to stay. 20.The Court of Appeal has consistently held that courts should not issue orders in vain or that serve no practical purpose. 21.Granting orders that amount to an exercise in futility is improper as it wastes judicial resources and serves no legal end. 22.Regarding the prayer for cross-examination of the process server, the trial court's reasoning was sound. 23.The court noted that cross-examination would serve no useful purpose because there was no pending substantive prayer to which such evidence could be applied. 24.Cross-examination of a process server is only meaningful where there is a live dispute regarding service that would affect the determination of pending issues. 25.Since the underlying orders had already been enforced and the substratum of the main suit had been determined, cross-examination would have produced evidence that could not be utilized by the court. 26.The appellant's reliance on the Giella v Cassman Brown [1973] EA 358 principles is misplaced. Those principles govern the grant of interlocutory injunctions in active proceedings where a prima facie case must be established. 27.Here, the trial court had already determined the main application on its merits, and no interlocutory orders were pending that required the application of the Giella test. 28.The trial magistrate was not flouting any principles but rather exercising discretion in determining that the prayers sought had been overtaken by events. 29.On the second issue, the appellant's claim that the trial court violated his right to be heard under Article 50(1) of the Constitution is untenable. 30.The record shows that the appellant filed a detailed supporting affidavit and written submissions, and the trial court considered the issues raised therein extensively. 31.The mere fact that the respondent did not attend does not entitle the appellant to automatic grant of orders as prayed. 32.Courts must still determine whether the prayers sought are legally sound and capable of being granted. 33.The right to be heard does not mean that a party is entitled to orders simply because the other party is absent; the court must still exercise its judicial mind to determine whether the prayers meet legal thresholds. 34.Regarding the doctrine of res judicata raised by the appellant, the trial court cannot be faulted for not applying Section 6 of the Civil Procedure Act when there was no formal preliminary objection or application raising the issue with evidence of the previous suit. 35.The appellant merely mentioned res judicata in his affidavit without demonstrating that the same parties, same subject matter, and same issues had been finally determined by a competent court. 36.The doctrine of res judicata under Section 7 of the Civil Procedure Act requires strict proof of five elements, and mere mention without evidence does not oust the court's jurisdiction. 37.The appellant's argument that the trial court erred by issuing permanent orders in a miscellaneous application is based on a misunderstanding. 38.The trial court did not issue permanent orders; it merely declined to set aside orders that had already been enforced. 39.The absence of a plaint or originating summons in a miscellaneous application does not render the court powerless to make procedural rulings on applications properly before it. 40.For the avoidance of doubt, the court finds no contradiction in the trial magistrate's reasoning. 41.The finding that cross-examination was not tenable without an inter partes hearing is consistent with the principle that procedural steps must serve a substantive purpose. 42.Having found that the main prayers had been overtaken by events, there was no basis upon which to conduct cross-examination. 43.The trial court did not contradict itself but rather applied logical sequential reasoning. 44.Consequently, the appeal is dismissed. Since the respondent did not participate in this appeal and the appellant chose to proceed to litigate matters that had already been concluded, each party shall bear their own costs as ordered by the trial court. 45.Orders to issue accordingly. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 2ND DAY OF JUNE 2026.ASENATH ONGERIJUDGEIn the presence ofMiss Obina holding brief Muhatia Pala for the AppellantNo appearance for RespondentChrispine - Court Assistant