On 20 th March 2024, this court delivered judgment forfeiting motor vehicle registration number KCR 003A having declared it proceeds of crime. By an application dated 8 th April 2025, the respondent has approached this court praying for the following orders;
This application be certified as urgent and service thereof be dispensed with in the first instance.
This Honourable Court be pleased to stay execution of the judgment, decree and/or orders made on 20 th March 2024 pending the hearing and determination of this application.
This Honourable Court be pleased to stay execution of the judgment, decree and/or orders made on 20 th March 2024 pending the hearing and determination of the respondent’s/applicant’s appeal.
The costs of this application be in the cause.
The application is supported by affidavit of the 1 st respondent sworn on 8 th April 2024. The affidavit depones that the applicant has lodged a notice of appeal dated 27 th March 2024. The 1 st respondent adds that the applicant has made an application in Moyale Chief Magistrate’s Court where it seeks to have the motor vehicle which is detained at Moyale police station released to it. He depones further that he is apprehensive that execution of the forfeiture order will render his intended appeal nugatory.
In reply to the application, the respondent filed a replying affidavit sworn by Alfred Musalia dated 28 th April 2025 in which it is stated that the application is res judicata a previous application dated 25-04-2024 which sought similar orders and which was considered by Honourable Justice E.N. Maina vide ruling delivered on 30-05-2024. The applicant avers further that it cancelled advertisement for sale of the motor vehicle done on 25-02-2023 vide notices of cancellation published on 14 th to 16 th March 2024. It accuses the respondent of being indolent and delaying the filing of the appeal and as such the appeal is deemed by law as withdrawn.
I have gone through the court file and established that it is true that there was another application dated 25-04-2025 which sought the following orders;
This application be certified as urgent and service thereof be dispensed with in the first instance.
This Honourable Court be pleased to stay execution of the judgment, decree and/or orders made one on 20 th March 2024 pending the hearing and determination of this application.
This Honourable Court be pleased to stay execution of the judgment, decree and/or orders made one on 20 th March 2024 pending the hearing and determination of the appeal filed.
The costs of this application be in the cause.
There is no doubt that the prayers in the above application are the same as the prayers in the current application with a twist of a few words. The earlier application was canvassed by way of written submissions which I have gone thorough and, in my opinion, they covered the issues as in the current application. In her ruling dated 30-05-2024, Honourable Justice E.N. Maina indicated that she had considered the application and proceeded to grant it on terms that the stay of execution would subsist for thirty days.
The principle of res judicata posits that no court shall entertain a suit whose issues have been heard and determined by a court of competent jurisdiction between the same parties and involving the same subject matter in a previous suit. The same principle applies to applications. There is no doubt that the application before this court is not only between the same parties as in the application dated 25 th April 2024 but also filed in the same suit. It is indisputable that the court which decided the application was a competent one.
In view of the above, I do not hesitate to hold that the application before me is res judicata the one dated 25 th April 2024. It is also worth to mention that the respondents took almost a year after expiry of the thirty days stay granted by Justice E.N. Maina and the delay has not been explained. It is notable that the current application is not for extension of the stay but fresh orders.
On whether or not the appeal should be deemed as withdrawn, it is not within my jurisdiction to venture into that issue. Further, it is my opinion that any further application for stay of execution should be filed in the Court of Appeal.
The application dated 8 th April 2025 is hereby dismissed with costs.
Dated, signed and delivered at Nairobi this 31 th day of July 2025.
B.M. MUSYOKI
JUDGE OF THE HIGH COURT.
Ruling delivered in presence of;
Mr. Wambua for the applicant and
Mr. Onyango the respondent.
This application be certified as urgent and service thereof be dispensed with in the first instance.
This Honourable Court be pleased to stay execution of the judgment, decree and/or orders made on 20 th March 2024 pending the hearing and determination of this application.
This Honourable Court be pleased to stay execution of the judgment, decree and/or orders made on 20 th March 2024 pending the hearing and determination of the respondent’s/applicant’s appeal.
The costs of this application be in the cause.
The application is supported by affidavit of the 1 st respondent sworn on 8 th April 2024. The affidavit depones that the applicant has lodged a notice of appeal dated 27 th March 2024. The 1 st respondent adds that the applicant has made an application in Moyale Chief Magistrate’s Court where it seeks to have the motor vehicle which is detained at Moyale police station released to it. He depones further that he is apprehensive that execution of the forfeiture order will render his intended appeal nugatory.
In reply to the application, the respondent filed a replying affidavit sworn by Alfred Musalia dated 28 th April 2025 in which it is stated that the application is res judicata a previous application dated 25-04-2024 which sought similar orders and which was considered by Honourable Justice E.N. Maina vide ruling delivered on 30-05-2024. The applicant avers further that it cancelled advertisement for sale of the motor vehicle done on 25-02-2023 vide notices of cancellation published on 14 th to 16 th March 2024. It accuses the respondent of being indolent and delaying the filing of the appeal and as such the appeal is deemed by law as withdrawn.
I have gone through the court file and established that it is true that there was another application dated 25-04-2025 which sought the following orders;
This application be certified as urgent and service thereof be dispensed with in the first instance.
This Honourable Court be pleased to stay execution of the judgment, decree and/or orders made one on 20 th March 2024 pending the hearing and determination of this application.
This Honourable Court be pleased to stay execution of the judgment, decree and/or orders made one on 20 th March 2024 pending the hearing and determination of the appeal filed.
The costs of this application be in the cause.
There is no doubt that the prayers in the above application are the same as the prayers in the current application with a twist of a few words. The earlier application was canvassed by way of written submissions which I have gone thorough and, in my opinion, they covered the issues as in the current application. In her ruling dated 30-05-2024, Honourable Justice E.N. Maina indicated that she had considered the application and proceeded to grant it on terms that the stay of execution would subsist for thirty days.
The principle of res judicata posits that no court shall entertain a suit whose issues have been heard and determined by a court of competent jurisdiction between the same parties and involving the same subject matter in a previous suit. The same principle applies to applications. There is no doubt that the application before this court is not only between the same parties as in the application dated 25 th April 2024 but also filed in the same suit. It is indisputable that the court which decided the application was a competent one.
In view of the above, I do not hesitate to hold that the application before me is res judicata the one dated 25 th April 2024. It is also worth to mention that the respondents took almost a year after expiry of the thirty days stay granted by Justice E.N. Maina and the delay has not been explained. It is notable that the current application is not for extension of the stay but fresh orders.
On whether or not the appeal should be deemed as withdrawn, it is not within my jurisdiction to venture into that issue. Further, it is my opinion that any further application for stay of execution should be filed in the Court of Appeal.
The application dated 8 th April 2025 is hereby dismissed with costs.
Dated, signed and delivered at Nairobi this 31 th day of July 2025.
B.M. MUSYOKI
JUDGE OF THE HIGH COURT.
Ruling delivered in presence of;
Mr. Wambua for the applicant and
Mr. Onyango the respondent.