https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4052

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NAIROBI** **ELC CIVIL SUIT NO. 1048 OF 2014** **ROSEWA AGENCIES LIMITED ……………………………………… PLAINTIFF** **=VERSUS=** **KENYA POWER & LIGHTING COMPANY LIMITED ………… DEFENDANT** **RULING** 1. By a Notice of Motion dated 15th April 2026, brought under Sections 1A, 1B & 3A of the Civil Procedure Act, Order 51, and Order 22, Rule 25 of the Civil Procedure Rules, the Defendant seeks the following orders: 1. ***Spent.*** 2. ***That there be a stay of execution of the Judgment, Decree and all consequential proceedings arising from the Warrants of Attachment and Proclamation of Attachment issued through Zasha Auctioneers, including attachment, auction and/or sale of the Defendant/Applicant's property herein pending the hearing and determination of Milimani ELC Civil Suit No. E139 of 2026-Kenya Power & Lighting Company Limited -vs- Rosewa Agencies Limited & Kigwe Limited & 4 other Interested Parties.*** 3. ***That the costs of this Application be provided for.*** 2. The application is based on the grounds appearing on its face together with the supporting affidavit of Dennis Maanzo, the Defendant’s Legal Officer, sworn on even date. **THE APPLICANT’S CASE** 1. The deponent averred that the dispute arose from a suit filed in June 2014, where the Plaintiff alleged unlawful entry and the installation of electrical infrastructure on L.R. No. 18697/4. He further averred that a judgment was delivered on 22nd February 2023, in which the Court found the Defendant liable for trespass, ordered the parties to formalize a Wayleave Agreement, and awarded damages of Kshs. 45,120,000/= as compensation, along with general damages of Kshs. 1,000,000/=, plus costs and interest. 2. He asserted that the Defendant later sought a review of the Judgment through an application dated 1st November 2023, based on the existence of a Wayleave Agreement dated 11th February 1975 over the original parcel L.R. No. 11407, which predated the subdivision that gave rise to the suit property, and that was heard and dismissed. A decree was then issued on 6th March 2026, following which the Plaintiff commenced execution proceedings, including the issuance of warrants of attachment and proclamation against the Defendant’s assets valued at approximately Kshs. 75,000,000/=. 3. He asserted that the attachment targets critical operational assets, including over fifty field motor vehicles and essential office equipment, which are vital to the organization's trade operations and its statutory mandate of supplying electricity. He contended that attaching these assets would disrupt national electricity services, adversely affect key sectors such as healthcare, security, telecommunications, transportation, and public administration, thereby exposing the public to substantial risk. 4. He argued that the execution measures are excessive, disproportionate, oppressive, and would impair the Applicant’s operations, undermine national grid management, and lead to broader economic and contractual repercussions. He contended that the attachment would lead to significant and irreversible damage, including diminishing the Applicant’s capacity to respond to outages and maintain infrastructure. 5. He relied on the proceedings in Milimani ELC Civil Suit No. E139 of 2026 to argue that the outcome of those proceedings could directly influence the Judgment and Decree herein, especially since it was alleged that the Judgment was obtained without disclosure of that material agreement. 6. The Applicant expressed its willingness to provide security for the due performance of the decree. The deponent maintained that the application was filed timeously and argued that if execution is not stayed, the Applicant would suffer substantial loss, whereas the Plaintiff would not be prejudiced as the decretal sum would continue to accrue interest. **THE PLAINTIFF’S CASE** 1. The Plaintiff filed a Notice of Preliminary Objection dated 16th April 2026 and a replying affidavit sworn by its Director, Charles Wathua, in opposition to the application. 2. The preliminary objection is based on the grounds that this Court lacks jurisdiction to entertain the application because it is res judicata. The Plaintiff asserts that the issues raised were addressed in the Defendant’s application dated 1st November 2023, which was heard and determined by the ruling delivered on 24th November 2025. It was argued that the ruling has neither been appealed nor reviewed and remains binding upon the parties. 3. The Plaintiff contended that the present Application constitutes an abuse of the Court’s process, intended to undermine and frustrate the enforcement of a valid judgment. The deponent asserts that the dispute has been ongoing since August 2014, was heard, and was determined by the judgment delivered on 22nd February 2023. 4. The deponent contends that the Defendant subsequently participated in taxation proceedings, culminating in the ruling delivered on 18th February 2026. He maintains that the Defendant has failed to satisfy the decretal sum despite being aware of its obligations under the decree. 5. The deponent stated that the Plaintiff issued a demand letter dated 10th March 2026, seeking settlement of the decretal sum, which the Defendant ignored. Following the commencement of execution and the service of the warrants of attachment, the Defendant, by letter dated 4th April 2026, requested additional time to settle the decree and to execute a wayleave agreement, which the Plaintiff agreed to on the condition that payment be made by 13th April 2026. 6. However, instead of complying, the Defendant instituted Milimani ELC Civil Suit No. E139 of 2026 and filed the present application. The deponent argued that the timing of both the new suit and the present application demonstrates bad faith, a deliberate attempt to reopen settled issues and hinder the enforcement of the decree. 7. He further argued that a party against whom a decree has been issued is obliged to comply with it unless it is vacated or set aside. He contended that the Defendant cannot challenge existing Court decisions as fraudulent while simultaneously seeking its discretionary intervention. He maintained that the Defendant’s conduct amounts to defiance of the Court’s authority and undermines the administration of justice. 8. Regarding prejudice, the deponent asserted that the Defendant has the financial capacity to satisfy the decree. He maintained that the Plaintiff is capable of refunding the decretal sum if the Defendant succeeds in the new suit. In light of the foregoing, the deponent argued that the Defendant has not demonstrated substantial loss, whereas the Plaintiff continues to suffer prejudice through prolonged non-payment. 9. In conclusion, he contended that the application is scandalous, frivolous, vexatious, and a blatant abuse of the Court's process. He urged the Court to dismiss the application with costs and to order the Defendant to satisfy the decree. **THE RESPONSE** 1. In a further affidavit dated 17th April 2026, the deponent opposed the Plaintiff’s preliminary objection, arguing that it is misconceived and without merit. He asserted that this Court has jurisdiction under Order 22 Rule 25 of the Civil Procedure Rules to grant a stay of execution as there is a pending suit between the parties concerning the validity and enforceability of the Wayleave Agreement dated 11th February 1975 over the original parcel L.R. No. 11407, which may have a direct bearing on, and potentially affect, the validity of the judgment and decree herein. 2. He further argued that the preliminary objection does not meet the criteria for a valid preliminary objection as it is based on disputed factual issues. 3. He asserted that the correspondence between the parties regarding the settlement of the decretal sum and the preparation of a wayleave agreement was made on a without prejudice basis, and is therefore inadmissible and should be expunged from the record. 4. Regarding the issue of execution, the deponent asserted that the proclamation by the Plaintiff’s auctioneers targets over 50 vehicles and various office equipment items, which are essential tools of trade necessary for the Defendant’s statutory mandate. He argued that attaching such assets would paralyse operations and disrupt electricity services. He asserted that the execution process is unlawful, oppressive, and contravenes Section 44(1)(ii) of the Civil Procedure Act. 5. He maintained that the application was made in good faith to preserve the subject matter pending the hearing and determination of the suit, not to undermine court authority. He asserted that the Applicant has satisfied the conditions for the stay and that no prejudice would be caused to the Plaintiff if the orders are granted. **THE PLAINTIFF’S SUPPLEMENTARY AFFIDAVIT** 1. In a supplementary affidavit dated 20th April 2026, the deponent outlined the procedural history of the dispute, noting that the matter culminated in a judgment in its favour. He reiterated the contents of his replying affidavit. 2. The application was canvassed by way of written submissions. **THE DEFENDANT/ APPLICANT’S SUBMISSIONS** 1. The Defendant filed its submissions dated 20th April 2026. 2. On its behalf, Counsel submitted that the Defendant had established sufficient cause to warrant the grant of a stay of execution under Order 22 Rule 25 of the Civil Procedure Rules. Counsel argued that the pendency of Milimani ELC Civil Suit No. E139 of 2026 satisfies the statutory threshold, as it involves the same parties and raises issues whose determination is capable of directly affecting or varying the decree herein. 3. Counsel relied on **Aswa Developers & Contractors Limited & 2 others v Synergy Industrial Credit Limited & another [2025] KEHC 4165 (KLR)** to argue that, when exercising discretion under Order 22 Rule 25, the Court is not required to evaluate the merits of the pending suit or its prospects of success. Instead, it must consider whether the outcome could affect the decree intended for execution. Counsel submitted that the pending proceedings raise substantive and triable issues concerning the validity and enforceability of the 1975 Wayleave Agreement, which challenge the core of the decree and therefore justify maintaining the status quo. 4. Counsel argued that the interests of justice favour granting a stay to prevent the pending suit from becoming nugatory. Counsel maintained that the Plaintiff would not suffer any prejudice since interest continues to accrue on the decretal sum, while the Defendant would suffer irreparable harm if execution were to proceed. 5. Regarding the legality of the execution, Counsel submitted that the process undertaken by the Plaintiff was irregular and unlawful, as the attachment included assets that had not been proclaimed and tools of trade which are exempt from execution. To support this argument, reliance was placed on **Kamau & another v Wasike [2024] KEHC 9913 (KLR),** where the Court held that attaching unproclaimed property is illegal and renders the execution process null and void. Further reliance was placed on **John Wepukhuli t/a Gati Cleaning Agency Limited v Julius Odhiambo Oduor Civil Appeal No. 82 of 2019 (KLR),** to submit that the attachment of tools of trade constitutes substantial loss and violates Section 44(1)(ii) of the Civil Procedure Act. 6. Counsel also submitted that the Defendant has demonstrated good faith and willingness to furnish security, which is a key factor when exercising discretion. In this regard, reliance was placed on **Focin Motorcycle Co. Limited v Ann Wambui Wangui & another [2018] KEHC 8358 (KLR),** where the Court held that an offer to provide security is indicative of bona fides and supports the grant of stay. 7. Counsel submitted that the application was filed promptly and is not intended to obstruct justice but to preserve the subject matter pending the resolution of a related dispute. Counsel argued that the ongoing suit is not a collateral attack on the judgment and raises separate issues regarding the enforceability of the wayleave, which should be decided on the merits. 8. In light of the foregoing, Counsel urged the Court to exercise its discretion in favour of the Defendant and allow the application as prayed. **THE PLAINTIFF’S SUBMISSIONS** 1. The Plaintiff filed its submissions dated 21st April 2026. 2. On behalf of the Plaintiff, Counsel submitted that the application is misconceived, incompetent, and an abuse of the Court process, as it is based on a suit instituted after judgment and decree with the sole aim of defeating lawful execution. Counsel further submitted that Order 22 Rule 25 of the Civil Procedure Rules does not apply where a suit is filed post-judgment to challenge a concluded matter. Counsel argued that the provision only contemplates a pre-existing suit subsisting at the time of the decree. 3. Counsel further submitted that the power to grant a stay of execution is discretionary and should only be exercised in exceptional circumstances. To support this point, reliance was placed on **Ngathiko & 6 others v Mwarire & 2 others [2022] KEELC 15023 (KLR)**, where the Court emphasized that a stay of execution in concluded matters should not be granted as a matter of course, particularly when it would impede the finality of litigation. 4. Counsel argued that the legal threshold for granting a stay requires proof of substantial loss, no unreasonable delay, and the provision of security. In that regard, Counsel relied on **Kenya Shell Limited v Kibiru & another [1986] KLR 410,** where the Court of Appeal held that substantial loss is the cornerstone of an application for a stay and must be specifically demonstrated. It was submitted that the Defendant neither demonstrated any substantial loss nor offered security, and that the application was filed after an inordinate delay. 5. Regarding the issue of delay, Counsel cited **Henry Sakwa Maloba v Bonface Papando Tsabuko [2020] KEHC 1606 (KLR),** where the Court emphasized that an unexplained delay disqualifies an applicant from the discretionary relief of stay. It was submitted that the present application, having been filed several years after the judgment, is belated and lacks good faith. 6. Counsel also relied on **Kamuthi Farmers Co-operative Society Ltd v Nairobi City County, Nairobi City County ELC No. 6898 of 1991,** to submit that the provision of security is a mandatory requirement for obtaining a stay, which the Defendant has failed to satisfy. Further reliance was placed on **Shri Krishna Singh v Mathora Ahir, AIR 1982 SC 686; (1981) 4 SCC 421.** 7. On the broader principles governing the exercise of judicial discretion and case management, Counsel cited **Hunker Trading Company Limited v Elf Oil Kenya Limited, Civil Application No. Nai. 6 of 2010** and **Safaricom Limited v Ocean View Beach Hotel Limited & 2 others Civil Application No. 327 of 2009**, to submit that the overriding objective requires Courts to facilitate an expeditious and proportionate resolution of disputes and to prevent the misuse of procedural mechanisms that hinder finality. 8. Counsel cited **Equity Bank Limited v West Link Mbo Limited Civil** **Application No. 78 of 2011**, to submit that the Court must balance competing interests while safeguarding the integrity of its process and ensuring that successful litigants are not deprived of the fruits of their judgment. 9. In light of the foregoing, Counsel urged the court to dismiss the application with costs. **ANALYSIS AND DETERMINATION** 1. Having considered the application, the respective affidavits and the rival submissions, the following issues arise for determination: *a) Whether the preliminary objection is merited; and* *b) Whether the Applicant has met the threshold for granting a stay of execution* 1. Regarding the first issue, the law on preliminary objections is well settled. A preliminary objection must be based on a pure point of law. In **Mukisa Biscuits Manufacturing Company Ltd v West End Distributors Ltd [1969] EA 696,** Law JA stated; ***“So far as I’m aware, a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which, if argued as a preliminary point, may dispose of the suit. Examples are an objection to the jurisdiction of the Court or a plea of limitation or submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”*** 1. Similarly, in **Oraro vs Mbaja (2005) eKLR** Ojwang J (as he then was) described it as follows: - ***“I think the principle is abundantly clear. A Preliminary Objection correctly understood is now well identified as, and declared to be a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the process of evidence. An assertion which claims to be a Preliminary Objection and yet it hears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true Preliminary Objection which the Court should allow to proceed.”*** 1. The plea of res judicata is a pure point of law that can dispose of the suit without examining its merits. 2. The Plaintiff contends that the issue of stay of execution was determined in the ruling delivered on 24th November 2025. 3. The Defendant argued that the Preliminary Objection is based on disputed factual issues and therefore falls outside the scope of a valid preliminary objection. 4. The doctrine of res judicata is embodied **in Section 7 of the Civil Procedure Act** 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.*** 1. The Supreme Court in **John Florence Maritime Services Limited & another vs. Cabinet Secretary for Transport and Infrastructure & 3 Others [2021] eKLR** clarified the scope of the doctrine of *res judicata* as follows: ***“We reaffirm our position as in the Muiri Coffee case that the doctrine of res judicata is based on the principle of finality which is a matter of public policy. The principle of finality is one of the pillars upon which our judicial system is founded and the doctrine of res judicata prevents a multiplicity of suits, which would ordinarily clog the courts, apart from occasioning unnecessary costs to the parties; and it ensures that litigation comes to an end, and the verdict duly translates into fruit for one party, and liability for another party, conclusively.*** * + - * 1. ***For res judicata to be invoked in a civil matter the following elements must be demonstrated:*** 2. ***a) There is a former Judgment or order which was final*** 3. ***b) The Judgment or order was on merit*** 4. ***c) The Judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; an*** 5. ***d)There must be between the first and the second action identical parties, subject matter and cause of action. (See Uhuru Highway Developers Limited v Central Bank of Kenya & others [1999] eKLR and See the decision of the Court of Appeal in Nicholas Njeru v Attorney General & 8 others Civil Appeal 110 of 2011 (2013) eKLR).”*** 1. The doctrine is based on public policy that litigation should be brought to an end. It protects parties from being vexed twice over the same matter, upholds the authority of judicial decisions, and prevents abuse of the Court process through repetitive litigation. 2. The Plaintiff contends that the Defendant is impermissibly inviting the Court to revisit an issue that has already been determined in the Court’s ruling dated 24th November 2025. 3. The record shows that the application dated 1st November 2023 sought a review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. The Court was invited to exercise its review jurisdiction, which is limited to the grounds specified under Order 45, including the discovery of a new and important matter, an error apparent on the face of the record, or any other sufficient reason. 4. The present application is brought under Order 22 Rule 25 of the Civil Procedure Rules and seeks a stay of execution pending the determination of a separate suit between the parties. The jurisdiction invoked is the Court’s discretion to stay execution when there is a pending suit between the decree holder and the judgment debtor. 5. The legal tests, the statutory foundation, and the reliefs sought are therefore not identical. 6. Although the parties remain the same, the issue in dispute in the present application was not directly and substantially in issue in the application dated 1st November 2023. The present application also does not invite the Court to determine the same cause of action that was finally determined in the ruling of 24th November 2025. 7. Accordingly, this Court finds that the present application is not barred by the doctrine of res judicata. 8. Regarding the second issue, **Order 22 Rule 25** of the **Civil Procedure Rules** provides as follows: ***“Where a suit is pending in any court against the holder of a decree of such court in the name of the person against whom the decree was passed, the court may, on such terms as to security or otherwise, as it thinks fit, stay execution of the decree until the pending suit has been decided.”*** 1. In **Ngathiko & 6 others v Mwarire & 2 others [2022] KEELC 15023 (KLR),** the Court observed that a judgment debtor will not invariably succeed in stopping execution merely because there is another suit pending between the parties. The Court emphasized that the discretion must be exercised judiciously and only when sufficient cause is demonstrated. 2. The Defendant annexed the Plaint filed in ELC No. E139 of 2026. In that suit, the Defendant sued the Plaintiff herein as the 1st Defendant and Kigwe Limited as the 2nd Defendant. The Attorney General, the Director of Survey, the Chief Land Registrar, and the National Land Commission have been joined as interested parties seeking, among other reliefs, orders setting aside the judgment in this matter, a declaration that the wayleave agreement dated 11th February 1975 is valid and binding, and a declaration that no payments or compensation are payable by the Plaintiff to the 1st Defendant. Those prayers, if granted, would have a direct bearing on the decree now sought to be executed. 3. The Defendant contends that the execution commenced by the Plaintiff is oppressive and unlawful because the auctioneers attached assets not listed in the proclamation notices in breach of Section 44(1)(ii) of the Civil Procedure Act. 4. **Section 441 (ii)** of the **Civil Procedure Act** states that: ***“All property belonging to a judgment debtor, including property over which or over the profits of which he has a disposing power which he may exercise for his own benefit, whether that property is held in his name or in the name of another but on his behalf, shall be liable to attachment and sale in execution of a decree:*** ***Provided that the following shall not be liable to attachment or sale—*** ***…*** ***(ii) the tools and implements of a person necessary for the performance by him of his trade or profession …”*** 1. This provision relates to a person rather than a corporate entity. In **Blackwood Hodge Kenya Ltd v Lead Gasoline Tank Clearing Sam and Chase (K) Ltd,** the Court held that: ***“Section 44 of the Civil Procedure Act (Cap 21), in which it is provided that the tools and implements of a person for the performance of his trade or profession shall not be liable to attachment or sale, is not intended to protect corporate entities but artisans whose livelihood depends on their workmanship. The word person in that section does not include a corporate body.”*** 1. The Defendant is a public utility entity and not a natural person. The argument that its vehicles and office equipment are immune from attachment merely because they are used in its operations is not, on its own, sufficient to defeat execution. 2. The Court is also mindful that what constitutes tools of trade depends on the facts of each case. In **Francis Kamau Njoroge & another v James Mbire Ngaita & 4 others [2016] eKLR**, the Court held that office furniture could not properly be regarded as tools of trade. Conversely, in **Jonathan Wepukhuli t/a Gati Cleaning Agency Limited v Julius Odhiambo Oduor [2019] KEHC 1973 (KLR**), the Court considered that certain office equipment could fall within the category of tools of trade. 3. While this Court is not persuaded that Section 44(1)(ii) precludes the Defendant from execution, the nature and extent of the attachment, considered together with the existence of ELC No. E139 of 2026 are relevant to the Court’s discretion under Order 22 Rule 25of the Civil Procedure Rules. Execution, which substantially disrupts the Defendant’s operations before the pending suit is determined, may cause prejudice that cannot be fully remedied if the Defendant ultimately succeeds in that suit. 4. In the circumstances, this Court finds that the Defendant has established a sufficient basis for a stay of execution under Order 22 Rule 25 of the Civil Procedure Rules, which stay shall beon terms that adequately secure the Plaintiff’s decree. 5. The upshot of the foregoing is that the application dated 15th April 2026 is merited and is hereby allowed in the following terms: 1. The execution of the decree herein is stayed pending the hearing and determination of ELC No. E139 of 2026 on the following conditions: i) The Defendant shall deposit the decretal amount in a joint interest-earning account in the names of the advocates for the parties within 14 days of this ruling. ii)In default of compliance with the condition on security within the period fixed by the Court, the stay shall lapse automatically, and the Plaintiff shall be at liberty to proceed with execution. * 1. Each party shall bear its own costs. **RULING SIGNED, DATED, AND DELIVERED VIA MICROSOFT TEAMS THIS 7TH DAY OF MAY 2026.** **…………………………………….** **HON. T. MURIGI** **JUDGE** **IN THE PRESENCE OF:** Muga for the Defendant/Applicant Ochieng holding brief for Agwara for the Plaintiff/Respondent