This ruling concerns the Notice of Motion dated 14th July 2025 filed by the Defendant/Applicant. The application seeks orders for stay of execution of the decree herein pending hearing and determination of the application.
The application is supported by the affidavit of the Defendant/Applicant sworn on 14th July 2025 and a Further Affidavit sworn on 13th November 2025. The Plaintiff/Respondent opposed the application through a Replying Affidavit sworn on 12th August 2025.
Both parties are acting in person. Although granted an opportunity to do so, neither party filed written submissions.
Applicant’s Case
The Applicant deposes that judgment in this matter was entered ex-parte and that he was never served with hearing notices or with the decree. He avers that he only became aware of the judgment upon being served with an eviction notice by the O.C.S Bumula Police Station on 11th July 2025.
It is his case that he now faces imminent eviction and that unless execution is stayed, he will suffer substantial loss. He urges the Court to intervene in the interest of justice.
Respondent’s Case
The Respondent contends that the application is incompetent, time-barred, and an abuse of the court process.
He avers that judgment was delivered on 23rd February 2018, that a decree was duly issued, and that the same was properly served upon the Applicant through a licensed process server, whose affidavit of service is on record.
The Respondent further deposes that the Applicant previously filed an application challenging execution, which application was dismissed on 2nd November 2021 by Hon. Justice B. N. Olao, and that the present application is a veiled attempt to delay enjoyment of the fruits of a lawful judgment.
Issues for Determination
Having considered the application, affidavits, and the record, the Court is of the view that the following issues arise for determination:
a. Whether the Applicant has satisfied the legal threshold for grant of stay of execution;
b. Whether the application is barred by the doctrines of res judicata and/or functus officio;
c. What orders should issue as to costs.
Applicable Law
Applications for stay of execution are governed by Order 42 Rule 6 of the Civil Procedure Rules. An applicant must demonstrate that:
a. He stands to suffer substantial loss unless stay is granted;
b. The application has been brought without unreasonable delay; and
c. He is willing to provide such security as the court may order.
These requirements are conjunctive. Failure to satisfy any one of them is fatal to an application for stay.
Analysis
Substantial Loss
Substantial loss is the cornerstone of jurisdiction in applications for stay. It must be specifically demonstrated and not merely alleged.
In James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR, the Court held that substantial loss is not established by merely stating that execution will issue, as execution is a lawful process.
In the present case, the Applicant asserts that he will suffer loss because he faces eviction. Beyond that assertion, no particularized or irreparable loss has been demonstrated.
Eviction carried out pursuant to a valid court decree does not, of itself, constitute substantial loss in law. The Applicant has therefore failed to satisfy this critical requirement.
Delay
Judgment in this matter was delivered on 23rd February 2018. The present application was filed in July 2025, approximately seven years later. The explanation advanced by the Applicant—that he was unaware of the proceedings—is not borne out by the record. There is evidence of service, participation in the proceedings, and a prior post-judgment application. The delay is inordinate and unexplained. Equity does not aid the indolent.
Res Judicata and Functus Officio
The Respondent has demonstrated that the Applicant previously filed an application seeking to halt execution of the decree, which application was conclusively dismissed on 2nd November 2021.
Under Section 7 of the Civil Procedure Act, this Court is barred from entertaining a matter that has already been heard and finally determined between the same parties.
The present application, though framed differently, seeks the same substantive relief and is therefore res judicata.
Further, following delivery of judgment and determination of post-judgment applications, this Court became functus officio, save for limited statutory exceptions which do not apply herein.
The doctrine exists to ensure finality in litigation and to prevent courts from endlessly revisiting concluded matters, a principle affirmed in Telkom Kenya Ltd v John Ochanda & 996 Others [2014] eKLR.
Balancing of Interests
The Court is mindful of the right to access justice and the right to be heard. However, these rights must be balanced against the equally fundamental principle that litigation must come to an end.
A successful litigant is entitled to enjoy the fruits of judgment. To allow repeated applications aimed at delaying execution would undermine judicial authority and offend the constitutional imperative of efficient administration of justice under Article 159 of the Constitution.
Disposition
In light of the foregoing, the Court finds that the Applicant has failed to meet the threshold for grant of stay of execution.
The Notice of Motion dated 14th July 2025 is hereby dismissed.
Costs of the application are awarded to the Plaintiff/Respondent.
DATED, SIGNED AND DELIVERED VIRTUALLY AT EMBU THIS 12TH DAY OF FEBRUARY, 2026.
.........................................................
E. C CHERONO
JUDGE
ENVIRONMENT AND LAND COURT
In the presence of;
1. Plaintiff/Advocate-absent.
2. Defendant/Advocate-absent.
3. Diana Kemboi C/A.
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