Introduction
1. This ruling concerns the Plaintiffs’ Notice of Motion dated 11th March 2026 seeking principally orders for stay of execution of the ruling delivered on 9th March 2026, striking out the Amended Plaint dated 25th April 2025, and vacating the interim orders issued on 28th October 2024 pending the hearing and determination of the intended appeal.
2. The application is expressed to be brought under Sections 3A and 66 of the Civil Procedure Act, Order 22 Rule 22 of the Civil Procedure Rules, and all other enabling provisions of the law.
3. The application is supported by the affidavit sworn on the same date by the 2nd Plaintiff, Raphael Tuju.
4. The Plaintiffs also relied on the submissions dated 6th April 2026, filed on their behalf by Victor Lee Advocates (Led by Paul Nyamodi and PLO Lumumba SC)
5. In brief, the Plaintiffs’ case is that they are dissatisfied with the ruling delivered on 9th March 2026 by which the court struck out the Amended Plaint dated 25th April 2025 and vacated the interim orders issued on 28th October 2024 preserving the suit properties, namely L.R No. 1055/165, Tamarind Karen, Dari Business Park and L.R No. 11320/3 Entim Sidai Wellness Sanctuary. They contend that, unless a stay is granted, the Respondents will proceed with the alienation and transfer of the suit properties, thereby rendering the intended appeal nugatory.
6. The Plaintiffs further contend that the intended appeal is arguable as the court failed to determine their contempt application dated 22nd January 2025 and erred in finding the suit and application res judicata, notwithstanding that the issues relating to the impugned valuation reports had not arisen in the earlier proceedings.
7. Relying on Order 42 Rule 6 of the Civil Procedure Rules and authorities including Vishram Ravji Halai v Thornton & Turpin [1990] KLR 365, the Plaintiffs urge the court to exercise its discretion in favour of preserving the suit properties so as not to render the intended appeal nugatory.
8. The application is opposed.
9. The 1st Defendant (Knight Frank Valuers Limited) relied on a replying affidavit sworn on 23rd March 2026 by Phillip Macharia Wanjiru, the 1st Defendant’s Associate Director of Valuations. They also relied on the written submissions dated 6th April 2026 filed on their behalf by their Advocates, Mohammed Muigai LLP.
10. It is the 1st Defendant’s case that the Plaintiffs’ application is incompetent, misconceived, and incurably defective both procedurally and substantively. The 1st Defendant argued that the Plaintiffs had invoked the wrong provisions of the law, namely Section 66 of the Civil Procedure Act and Order 22 Rule 22 of the Civil Procedure Rules, which, they contend, are inapplicable to an application for stay pending appeal from the High Court.
11. It was further their case that the ruling delivered on 9th March 2026 constituted a negative order incapable of being stayed because the court merely struck out the Amended Plaint and vacated the interim orders without directing any party to perform a positive act. Reliance was placed on authorities including Western College of Arts & Applied Sciences v Oranga & Others [1976] KLR 63, Co-operative Bank of Kenya Ltd v Banking Insurance & Finance Union (Kenya) [2015] eKLR and HGE v SM [2020] eKLR.
12. The first Defendant further contended that the Plaintiffs had failed to satisfy the conditions for grant of stay under Order 42 Rule 6 of the Civil Procedure Rules. In particular, it was argued that the Plaintiffs had not demonstrated substantial loss, had failed to furnish security for the due performance of the decree and had merely made generalized allegations regarding possible prejudice.
13. Additionally, the 1st Defendant maintained that some of the suit properties had already been sold and transferred, including the Ngong Road Property, and that the application had in part been overtaken by events.
14. They urged the court to find that litigation over the suit properties had been extensively and conclusively litigated before various courts and that there must be finality to litigation.
15. The 2nd and 3rd Defendants similarly opposed the application through the Replying Affidavit sworn by Carol Luwaga on 16th March 2026, a principal Legal Officer of the 2nd Defendant. They also relied on the written submissions dated 16th March 2026 filed on their behalf by Kaplan & Stratton Advocates.
16. They equally contended that the application is devoid of merit and does not satisfy the legal threshold for grant of stay pending appeal under Order 42 Rule 6 of the Civil Procedure Rules. According to them, the ruling delivered on 9th March 2026 merely struck out the Amended Plaint with costs and did not contain any positive or executable order capable of being stayed.
17. It was further their case that the dispute concerning the suit properties has already been conclusively litigated before several courts both in Kenya and abroad, and that the present proceedings are res judicata. In that regard, they refer to earlier determinations by the High Court, the Court of Appeal and the Supreme Court, as well as proceedings in the Queen’s Bench Division in England, all of which, according to them, conclusively determined the disputes between the parties concerning the lending facilities and realization of the securities.
18. The 2nd and 3rd Defendants further argued that the Plaintiffs have failed to satisfy the requirements under Order 42 Rule 6 of the Civil Procedure Rules, particularly the requirement of demonstrating substantial loss and furnishing security.
19. The 10th Defendant (Ultra Eureka Limited), represented by A.E. Kiprono Associates – Advocates, opposed the application vide the affidavit (erroneously) dated 17th March 2025, sworn by Jackson Chelimo Chebett, a director of the company. They also filed submissions dated 7th April 2026.
20. The 10th Defendant adopted the submissions of the 2nd and 3rd Defendants, also contends that the matter is res judicata, that the orders sought are incapable of being stayed, and that the application has been overtaken by events as the 10th Defendant is already the registered proprietor of L.R No. 1055/165, having purchased the same at a public auction, conducted pursuant to the 2nd Defendant’s statutory power of sale.
21. The Respondents therefore urged the court to dismiss the application with costs for failure to meet the threshold for grant of stay pending appeal.
Analysis and Determination
22. From the pleadings and submissions, the issues that arise for determination are:
i. Whether the application is res judicata;
ii. Whether the Application is incompetent for having been brought under the wrong provisions of the law
iii. Whether the Court can grant stay of a negative order;
iv. Whether the Applicants have satisfied the threshold under Order 42 Rule 6 of the Civil Procedure Rules;
Whether the application is res judicata
23. The Respondents submitted that the present application is barred by the doctrine of res judicata under Section 7 of the Civil Procedure Act, 2010, 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 the 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.”
24. The elements of the res judicata doctrine in civil cases have been authoritatively laid down by the Supreme Court in several cases, including John Florence Maritime Services Ltd & another v Cabinet Secretary Transport & Infrastructure & 3 others [2021] KESC 39 (KLR), where the Court was clear that for res judicata to be invoked in a civil matter, the following elements must be demonstrated:
(a) There is a former judgment or order which was final;
(b) The judgment or order was on merit;
(c) The judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; and
(d) There must be between the first and the second action identical parties, subject matter and cause of action.
25. More recently, in Dina Management Ltd v County Government of Mombasa & 5 others [2023] KESC 30 (KLR), the Supreme Court emphasized that res judicata serves the public interest in ensuring finality in litigation and preventing abuse of the court process. The Court was clear that:
“The doctrine of res judicata is founded on public policy and is aimed at achieving two objectives namely, that there must be finality to litigation and that the individual should not be harassed twice with the same account of litigation.”
26. It therefore follows that for a party to successfully plead res judicata, it must demonstrate the identity of issues, parties, title, final determination, and competence of the earlier court.
27. In this case, the material before Court demonstrates that the primary dispute between the parties has indeed been the subject of extensive litigation before multiple courts, including the High Court, the Court of Appeal, and the Supreme Court. In fact, the suit giving rise to this application was itself struck out on the ground of res judicata.
28. However, the Court notes that the present motion is only confined to an application for stay pending appeal, and not a re-litigation of the substantive dispute.
29. Accordingly, the Court finds and holds that the application is not res judicata.
Whether the Application is incompetent for having been brought under the wrong provisions of the law
30. The 1st Respondent/Defendant argued that the Plaintiffs’ Application is fatally defective for having been brought under Section 66 of the Civil Procedure Act and Order 22 Rule 22 of the Civil Procedure Rules, provisions which, according to the Respondents, are inapplicable to the circumstances of this case.
31. It was their submissions that Order 22 Rule 22 applies only where a decree has been sent to another court for execution and where a subordinate court is asked to stay execution to enable an application to be made before the appellate court. They therefore contended that the provision cannot apply to a stay application pending an intended appeal from the High Court itself.
32. I have carefully considered that objection.
33. The Court agrees that Order 22 Rule 22 of the Civil Procedure Rules principally relates to stay by a court to which a decree has been sent for execution. The provision contemplates a situation where execution proceedings are pending before a court executing another court’s decree. Strictly speaking, the present application ought properly to have been anchored on Order 42 Rule 6 of the Civil Procedure Rules, which specifically governs applications for stay pending appeal.
34. Equally, the Respondents are correct in their arguments that Section 66 of the Civil Procedure Act merely provides for the right of appeal from the High Court to the Court of Appeal and is not, by itself, the substantive provision governing stay of execution pending appeal.
35. However, the mere citation of an incorrect provision of the law, or failure to cite the appropriate provision, does not of itself necessarily render an application incompetent where the court is otherwise properly seized of jurisdiction, and the substance of the relief sought is clear.
36. In In Re the Estate of John Musamba Katumanga (Deceased) [2014] KEHC 3118 (KLR), the court held that the invocation of a wrong provision of the law does not invalidate proceedings where the court has jurisdiction and no prejudice is occasioned to the opposite party. The learned Judge (Musyoka J) stated as follows on the issue: -
“On the citation of the Appellate Jurisdiction Act and Rules, the position of the court is that citation is not fatal to the application. The applicant has conceded that the same was a mistake. I find that the prayers sought in the application are very clear. The mere citing of the wrong provisions of the law does not deny this court jurisdiction to consider the prayers sought if it has jurisdiction to grant them. The citation of the wrong provisions of the law amounts to a technicality in procedure. By dint of the constitutional provisions. I can and do hereby overlook the said technicality.”
37. Similarly, the Court of Appeal (F.K. Apallo) in Gatu v Muriuki [1986] KECA 2 (KLR) observed that procedural lapses and technical defects which do not go to jurisdiction ought not defeat substantive justice. The Court stated that:
“Although I am not now concerned with the merits, I cannot shut my eyes to the fact that the main ground on which the learned judge declined to exercise his discretion to set aside the judgment of dismissal was that in bringing the motion to relist, the applicant, in error quoted the wrong order. That seems to me hardly a sound basis for dismissing the motion.”
38. Further, Article 159(2)(d) of the Constitution obligates courts to administer justice without undue regard to procedural technicalities, while Sections 1A and 1B of the Civil Procedure Act enjoin the court to facilitate the just, expeditious, and proportionate resolution of disputes.
39. In the present case, the substance of the Plaintiffs’ application is clear. The Plaintiffs seek stay pending an intended appeal. It is evident from the record that the Respondents fully responded to the application on its merits and addressed the applicable legal threshold under Order 42 Rule 6 of the Civil Procedure Rules. No prejudice has been demonstrated arising from the citation of the impugned provisions.
40. Consequently, while I agree with the Respondents that some of the provisions cited by the Plaintiffs are inapplicable, I do not find the defect fatal to the application.
41. Consequently, I therefore decline to strike out or dismiss the application on that ground alone and shall instead determine it on its merits.
Whether the impugned order of 9th March 2026 can be stayed
42. The Respondents argued that the Court ruling of 9th March 2026 resulted in a negative order, which is not amenable to a stay. They cited, among others, the case of Western College of Arts and Applied Sciences v Oranga & Others [1976] KLR 63, and asserted that the impugned ruling, to the extent that it simply struck out the suit and vacated interim orders, is a negative order, incapable of being stayed.
43. While the Court accepts those submissions by the Respondents as the correct exposition of the law, and that an order striking out a suit is classically negative(see the Court of Appeal decision in Kaushik Panchamatia & 3 Others v Prime Bank Ltd [2020] eKLR.), the Court however notes that in the present case, the ruling of 9th March 2026, did not merely strike out the suit, but that it also vacated the injunctions previously restraining dealings with the suit properties.
44. In Mutiso v Mutiso [2022] KEHC 13688 (KLR), the Court (Odunga J – as he then was), in allowing a stay in relation to an order which dismissed an appeal, stated as follows:
“As regards the nature of the order sought to be stayed, I agree that ordinarily courts do not stay negative orders. In this case however, this Court not only dismissed the appeal but also corrected an error made by the trial court hence made a positive order in its award…… Accordingly, I find that this is a matter in which stay ought to be granted on conditions.”
45. Similarly, in the present case, it is not disputed that the striking out of the suit essentially meant the vacation of the injunctions previously restraining dealings with the suit properties, and had the immediate effect of enabling entry, possession, eviction, sale, or other acts of enforcement.
46. The affidavits, particularly those by the Applicants and the 10th Respondent, confirm that enforcement actions and altercations followed within hours of the ruling. These are obviously executory consequences of the ruling, which, in the view of this Court, are capable of being stayed.
47. Accordingly, the Court finds and holds that in the circumstances of the present case, the impugned order of 9th March 2026 is capable of being stayed.
Whether the Applicants have met the threshold for stay
48. The principles guiding the grant of a stay of execution pending appeal are well settled. These principles are provided under Order 42 rule 6(2) of the Civil Procedure Rules, which provides that no order of stay shall issue unless the Court is satisfied that:
i. Substantial loss may result to the applicant unless the order is made;
ii. The application has been made without unreasonable delay; and
iii. Such security as the Court orders has been given for the due performance of the decree.
49. The conditions prescribed under Order 42 rule 6 are conjunctive and must all be satisfied before the Court can grant the relief sought. The Court of Appeal in Afyare Enterprises Company Ltd v Nyaribo t/a I.N. Nyaribo & Co. Advocates [2025] KECA 1819 (KLR) emphasized that the conditions under Order 42 Rule 6 are couched in mandatory terms and must be complied with before an order stay can issue.
50. The principles guiding the exercise of this jurisdiction are judicially well settled. In Butt v Rent Restriction Tribunal [1979] KECA 22, the Court of Appeal held that the discretion to grant stay must be exercised in a manner that ensures that an appeal, if successful, is not rendered nugatory.
51. Similarly, in Kenya Shell Ltd v Kibiru [1986] KLR 410, the Court emphasized that substantial loss is the cornerstone of the jurisdiction to grant stay.
52. On the first limb, there is no dispute that the application was filed promptly. The impugned ruling was delivered on 9 March 2026, and the present application was filed on 11 March 2026.
53. The Court is therefore satisfied that the application was brought without unreasonable delay, thereby meeting the first requirement under Order 42 Rule 6(2).
54. The second and most critical requirement is whether the Applicants have demonstrated that they will suffer substantial loss if stay is denied. In JAMES WANGALWA & ANOTHER V AGNES NALIAKA CHESETO [2012] KEHC 1094 (KLR), it was held that a substantial loss entails a state of affairs that would irreparably affect or negate the very core of the applicant’s case if a stay is not granted. The Court (F. Gikonyo J) stated that:
“…the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”
55. In the present case, the Applicants have contended that unless an order of stay is granted, the suit properties will be alienated, thereby rendering the intended appeal nugatory.
56. The evidence before the Court, however, demonstrates that one of the suit properties (LR. 1055/165 – Tamarind Karen & Dari Business Park) was sold at a public auction, transferred to the 10th Defendant, and possession taken. In respect of that property, the Applicants’ equity of redemption was extinguished upon the fall of the hammer. The law is clear that once such a sale has taken place, the remedy available to an aggrieved chargor lies in damages pursuant to Section 99(4) of the Land Act.
57. This position has been affirmed in authorities such as Simon Njoroge Mburu v Consolidated Bank Ltd [2014] eKLR and Bomet Beer Distributors Ltd v KCB Ltd [2005] eKLR, where the courts held that a completed sale cannot be undone through injunctive relief and any loss is compensable.
58. Accordingly, the Court finds that no substantial loss has been demonstrated in respect of that property.
59. However, the position is different with regard to the property that remains unsold (L.R. 11320/3 – Entim Sidai Wellness Sanctuary). In respect of that property, there exists a real risk that, absent preservatory orders, the Respondents may proceed to realize the security before the intended appeal is heard.
60. If that were to occur, the substratum of the appeal would be irreversibly altered, potentially rendering the appeal nugatory.
61. Accordingly, I find that substantial loss has been demonstrated, but only in respect of the property that has not yet been sold.
62. The third limb under Order 42 Rule 6(2)(b) of the Civil Procedure Rules is the requirement that:
“such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.”
63. The purpose of security was explained in Butt v Rent Restriction Tribunal [1979] KECA 22, where the Court held that in exercising discretion, the court must ensure that the rights of both parties are balanced so that the successful party is not prejudiced while the appeal is pending. Security serves to guarantee the performance of the decree should the appeal fail. It protects the successful litigant from the risk of non-recovery, and also ensures that the right of appeal is not abused as a mechanism for delay.
64. In the present case, the Applicants did not place before the Court any specific or concrete proposal for security. There was no offer to deposit a sum in court, no proposal for a bank guarantee, or an undertaking supported by evidence of financial capacity.
65. Ordinarily, such omission would be fatal to the application, given the mandatory nature of the requirement.
66. However, notwithstanding the Applicants’ failure, the Court retains a residual discretion to fashion appropriate conditions for stay where the justice of the case so demands. In this regard, the Court, in the exercise of that discretion, is guided by two considerations – the necessity to preserve the substratum of the appeal, and also the need to safeguard the Respondents’ interests.
67. Unlike cases involving purely monetary decrees, the present matter concerns charged properties and the exercise of the statutory power of sale. The risk to the Respondents obviously lies in the further delay in realization of the security and the accumulation of interest on the outstanding debt.
68. On the other hand, it is also undeniable that the Applicants face the risk of irreversible loss of unsold property. In balancing these competing interests, and noting that leave to appeal has already been granted, I find that the appropriate approach is to grant a partial stay, limited only to the preservation of the unsold suit property.
69. The Court notes that the unsold property remains charged in favour of the 2nd Defendant Bank, which retains its statutory rights thereunder. By virtue of that charge, the property is not freely disposable by the Applicants and remains subject to the Bank’s control, thereby substantially mitigating the risk of dissipation.
70. In those circumstances, the Court is satisfied that there is no real risk of the Respondents being left without recourse should the appeal ultimately fail.
71. In the circumstances, and purely in the interests of preserving the substratum of the intended appeal, I would allow the application on the following limited terms:
i. There shall be a temporary stay of execution of the ruling delivered on 9th March 2026, limited only to preservation of L.R No. 11320/3 Entim Sidai Wellness Sanctuary pending the filing and determination of the intended appeal.
ii. For avoidance of doubt, this order shall not operate to reverse or nullify any completed transfer relating to L.R No. 1055/165, Tamarind Karen, Dari Business Park.
iii. The Plaintiffs shall, within thirty (30) days, deposit security in the sum of Kshs. 50,000,000/= in an interest-earning joint account in the names of counsel for the parties, failing which the stay orders shall automatically lapse.
iv. The Plaintiffs shall file and serve the Record of Appeal within sixty (60) days from the date hereof, failing which the stay orders shall stand discharged automatically.
v. Costs of the application shall abide the outcome of the intended appeal.
72. It is so ordered.
DATED, SIGNED, AND DELIVERED AT NAIROBI
THIS 21ST DAY OF MAY 2026
HON. MR. JUSTICE MOSES ADO
Judge of the High Court
In the Presence of:
Moses C/A
Prof. PLO Lumumba SC
Paul Nyamodi
Grado Mabachi…………………………………..for the Plaintiff/Applicants
Wakhsi h/b for
Emmanuel Wetangula & Prof Githu Muigai SC…………for the 1st Respondent
Dr. Fred Ojiambo SC
Victor Njenga Kahura……………………..for the 2nd Respondent
Otieno h/b Wawire………………………. for the 6th Defendant
Ms. Kerubo h/b for Kiprono………………. for the 10th Defendant
1. This ruling concerns the Plaintiffs’ Notice of Motion dated 11th March 2026 seeking principally orders for stay of execution of the ruling delivered on 9th March 2026, striking out the Amended Plaint dated 25th April 2025, and vacating the interim orders issued on 28th October 2024 pending the hearing and determination of the intended appeal.
2. The application is expressed to be brought under Sections 3A and 66 of the Civil Procedure Act, Order 22 Rule 22 of the Civil Procedure Rules, and all other enabling provisions of the law.
3. The application is supported by the affidavit sworn on the same date by the 2nd Plaintiff, Raphael Tuju.
4. The Plaintiffs also relied on the submissions dated 6th April 2026, filed on their behalf by Victor Lee Advocates (Led by Paul Nyamodi and PLO Lumumba SC)
5. In brief, the Plaintiffs’ case is that they are dissatisfied with the ruling delivered on 9th March 2026 by which the court struck out the Amended Plaint dated 25th April 2025 and vacated the interim orders issued on 28th October 2024 preserving the suit properties, namely L.R No. 1055/165, Tamarind Karen, Dari Business Park and L.R No. 11320/3 Entim Sidai Wellness Sanctuary. They contend that, unless a stay is granted, the Respondents will proceed with the alienation and transfer of the suit properties, thereby rendering the intended appeal nugatory.
6. The Plaintiffs further contend that the intended appeal is arguable as the court failed to determine their contempt application dated 22nd January 2025 and erred in finding the suit and application res judicata, notwithstanding that the issues relating to the impugned valuation reports had not arisen in the earlier proceedings.
7. Relying on Order 42 Rule 6 of the Civil Procedure Rules and authorities including Vishram Ravji Halai v Thornton & Turpin [1990] KLR 365, the Plaintiffs urge the court to exercise its discretion in favour of preserving the suit properties so as not to render the intended appeal nugatory.
8. The application is opposed.
9. The 1st Defendant (Knight Frank Valuers Limited) relied on a replying affidavit sworn on 23rd March 2026 by Phillip Macharia Wanjiru, the 1st Defendant’s Associate Director of Valuations. They also relied on the written submissions dated 6th April 2026 filed on their behalf by their Advocates, Mohammed Muigai LLP.
10. It is the 1st Defendant’s case that the Plaintiffs’ application is incompetent, misconceived, and incurably defective both procedurally and substantively. The 1st Defendant argued that the Plaintiffs had invoked the wrong provisions of the law, namely Section 66 of the Civil Procedure Act and Order 22 Rule 22 of the Civil Procedure Rules, which, they contend, are inapplicable to an application for stay pending appeal from the High Court.
11. It was further their case that the ruling delivered on 9th March 2026 constituted a negative order incapable of being stayed because the court merely struck out the Amended Plaint and vacated the interim orders without directing any party to perform a positive act. Reliance was placed on authorities including Western College of Arts & Applied Sciences v Oranga & Others [1976] KLR 63, Co-operative Bank of Kenya Ltd v Banking Insurance & Finance Union (Kenya) [2015] eKLR and HGE v SM [2020] eKLR.
12. The first Defendant further contended that the Plaintiffs had failed to satisfy the conditions for grant of stay under Order 42 Rule 6 of the Civil Procedure Rules. In particular, it was argued that the Plaintiffs had not demonstrated substantial loss, had failed to furnish security for the due performance of the decree and had merely made generalized allegations regarding possible prejudice.
13. Additionally, the 1st Defendant maintained that some of the suit properties had already been sold and transferred, including the Ngong Road Property, and that the application had in part been overtaken by events.
14. They urged the court to find that litigation over the suit properties had been extensively and conclusively litigated before various courts and that there must be finality to litigation.
15. The 2nd and 3rd Defendants similarly opposed the application through the Replying Affidavit sworn by Carol Luwaga on 16th March 2026, a principal Legal Officer of the 2nd Defendant. They also relied on the written submissions dated 16th March 2026 filed on their behalf by Kaplan & Stratton Advocates.
16. They equally contended that the application is devoid of merit and does not satisfy the legal threshold for grant of stay pending appeal under Order 42 Rule 6 of the Civil Procedure Rules. According to them, the ruling delivered on 9th March 2026 merely struck out the Amended Plaint with costs and did not contain any positive or executable order capable of being stayed.
17. It was further their case that the dispute concerning the suit properties has already been conclusively litigated before several courts both in Kenya and abroad, and that the present proceedings are res judicata. In that regard, they refer to earlier determinations by the High Court, the Court of Appeal and the Supreme Court, as well as proceedings in the Queen’s Bench Division in England, all of which, according to them, conclusively determined the disputes between the parties concerning the lending facilities and realization of the securities.
18. The 2nd and 3rd Defendants further argued that the Plaintiffs have failed to satisfy the requirements under Order 42 Rule 6 of the Civil Procedure Rules, particularly the requirement of demonstrating substantial loss and furnishing security.
19. The 10th Defendant (Ultra Eureka Limited), represented by A.E. Kiprono Associates – Advocates, opposed the application vide the affidavit (erroneously) dated 17th March 2025, sworn by Jackson Chelimo Chebett, a director of the company. They also filed submissions dated 7th April 2026.
20. The 10th Defendant adopted the submissions of the 2nd and 3rd Defendants, also contends that the matter is res judicata, that the orders sought are incapable of being stayed, and that the application has been overtaken by events as the 10th Defendant is already the registered proprietor of L.R No. 1055/165, having purchased the same at a public auction, conducted pursuant to the 2nd Defendant’s statutory power of sale.
21. The Respondents therefore urged the court to dismiss the application with costs for failure to meet the threshold for grant of stay pending appeal.
Analysis and Determination
22. From the pleadings and submissions, the issues that arise for determination are:
i. Whether the application is res judicata;
ii. Whether the Application is incompetent for having been brought under the wrong provisions of the law
iii. Whether the Court can grant stay of a negative order;
iv. Whether the Applicants have satisfied the threshold under Order 42 Rule 6 of the Civil Procedure Rules;
Whether the application is res judicata
23. The Respondents submitted that the present application is barred by the doctrine of res judicata under Section 7 of the Civil Procedure Act, 2010, 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 the 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.”
24. The elements of the res judicata doctrine in civil cases have been authoritatively laid down by the Supreme Court in several cases, including John Florence Maritime Services Ltd & another v Cabinet Secretary Transport & Infrastructure & 3 others [2021] KESC 39 (KLR), where the Court was clear that for res judicata to be invoked in a civil matter, the following elements must be demonstrated:
(a) There is a former judgment or order which was final;
(b) The judgment or order was on merit;
(c) The judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; and
(d) There must be between the first and the second action identical parties, subject matter and cause of action.
25. More recently, in Dina Management Ltd v County Government of Mombasa & 5 others [2023] KESC 30 (KLR), the Supreme Court emphasized that res judicata serves the public interest in ensuring finality in litigation and preventing abuse of the court process. The Court was clear that:
“The doctrine of res judicata is founded on public policy and is aimed at achieving two objectives namely, that there must be finality to litigation and that the individual should not be harassed twice with the same account of litigation.”
26. It therefore follows that for a party to successfully plead res judicata, it must demonstrate the identity of issues, parties, title, final determination, and competence of the earlier court.
27. In this case, the material before Court demonstrates that the primary dispute between the parties has indeed been the subject of extensive litigation before multiple courts, including the High Court, the Court of Appeal, and the Supreme Court. In fact, the suit giving rise to this application was itself struck out on the ground of res judicata.
28. However, the Court notes that the present motion is only confined to an application for stay pending appeal, and not a re-litigation of the substantive dispute.
29. Accordingly, the Court finds and holds that the application is not res judicata.
Whether the Application is incompetent for having been brought under the wrong provisions of the law
30. The 1st Respondent/Defendant argued that the Plaintiffs’ Application is fatally defective for having been brought under Section 66 of the Civil Procedure Act and Order 22 Rule 22 of the Civil Procedure Rules, provisions which, according to the Respondents, are inapplicable to the circumstances of this case.
31. It was their submissions that Order 22 Rule 22 applies only where a decree has been sent to another court for execution and where a subordinate court is asked to stay execution to enable an application to be made before the appellate court. They therefore contended that the provision cannot apply to a stay application pending an intended appeal from the High Court itself.
32. I have carefully considered that objection.
33. The Court agrees that Order 22 Rule 22 of the Civil Procedure Rules principally relates to stay by a court to which a decree has been sent for execution. The provision contemplates a situation where execution proceedings are pending before a court executing another court’s decree. Strictly speaking, the present application ought properly to have been anchored on Order 42 Rule 6 of the Civil Procedure Rules, which specifically governs applications for stay pending appeal.
34. Equally, the Respondents are correct in their arguments that Section 66 of the Civil Procedure Act merely provides for the right of appeal from the High Court to the Court of Appeal and is not, by itself, the substantive provision governing stay of execution pending appeal.
35. However, the mere citation of an incorrect provision of the law, or failure to cite the appropriate provision, does not of itself necessarily render an application incompetent where the court is otherwise properly seized of jurisdiction, and the substance of the relief sought is clear.
36. In In Re the Estate of John Musamba Katumanga (Deceased) [2014] KEHC 3118 (KLR), the court held that the invocation of a wrong provision of the law does not invalidate proceedings where the court has jurisdiction and no prejudice is occasioned to the opposite party. The learned Judge (Musyoka J) stated as follows on the issue: -
“On the citation of the Appellate Jurisdiction Act and Rules, the position of the court is that citation is not fatal to the application. The applicant has conceded that the same was a mistake. I find that the prayers sought in the application are very clear. The mere citing of the wrong provisions of the law does not deny this court jurisdiction to consider the prayers sought if it has jurisdiction to grant them. The citation of the wrong provisions of the law amounts to a technicality in procedure. By dint of the constitutional provisions. I can and do hereby overlook the said technicality.”
37. Similarly, the Court of Appeal (F.K. Apallo) in Gatu v Muriuki [1986] KECA 2 (KLR) observed that procedural lapses and technical defects which do not go to jurisdiction ought not defeat substantive justice. The Court stated that:
“Although I am not now concerned with the merits, I cannot shut my eyes to the fact that the main ground on which the learned judge declined to exercise his discretion to set aside the judgment of dismissal was that in bringing the motion to relist, the applicant, in error quoted the wrong order. That seems to me hardly a sound basis for dismissing the motion.”
38. Further, Article 159(2)(d) of the Constitution obligates courts to administer justice without undue regard to procedural technicalities, while Sections 1A and 1B of the Civil Procedure Act enjoin the court to facilitate the just, expeditious, and proportionate resolution of disputes.
39. In the present case, the substance of the Plaintiffs’ application is clear. The Plaintiffs seek stay pending an intended appeal. It is evident from the record that the Respondents fully responded to the application on its merits and addressed the applicable legal threshold under Order 42 Rule 6 of the Civil Procedure Rules. No prejudice has been demonstrated arising from the citation of the impugned provisions.
40. Consequently, while I agree with the Respondents that some of the provisions cited by the Plaintiffs are inapplicable, I do not find the defect fatal to the application.
41. Consequently, I therefore decline to strike out or dismiss the application on that ground alone and shall instead determine it on its merits.
Whether the impugned order of 9th March 2026 can be stayed
42. The Respondents argued that the Court ruling of 9th March 2026 resulted in a negative order, which is not amenable to a stay. They cited, among others, the case of Western College of Arts and Applied Sciences v Oranga & Others [1976] KLR 63, and asserted that the impugned ruling, to the extent that it simply struck out the suit and vacated interim orders, is a negative order, incapable of being stayed.
43. While the Court accepts those submissions by the Respondents as the correct exposition of the law, and that an order striking out a suit is classically negative(see the Court of Appeal decision in Kaushik Panchamatia & 3 Others v Prime Bank Ltd [2020] eKLR.), the Court however notes that in the present case, the ruling of 9th March 2026, did not merely strike out the suit, but that it also vacated the injunctions previously restraining dealings with the suit properties.
44. In Mutiso v Mutiso [2022] KEHC 13688 (KLR), the Court (Odunga J – as he then was), in allowing a stay in relation to an order which dismissed an appeal, stated as follows:
“As regards the nature of the order sought to be stayed, I agree that ordinarily courts do not stay negative orders. In this case however, this Court not only dismissed the appeal but also corrected an error made by the trial court hence made a positive order in its award…… Accordingly, I find that this is a matter in which stay ought to be granted on conditions.”
45. Similarly, in the present case, it is not disputed that the striking out of the suit essentially meant the vacation of the injunctions previously restraining dealings with the suit properties, and had the immediate effect of enabling entry, possession, eviction, sale, or other acts of enforcement.
46. The affidavits, particularly those by the Applicants and the 10th Respondent, confirm that enforcement actions and altercations followed within hours of the ruling. These are obviously executory consequences of the ruling, which, in the view of this Court, are capable of being stayed.
47. Accordingly, the Court finds and holds that in the circumstances of the present case, the impugned order of 9th March 2026 is capable of being stayed.
Whether the Applicants have met the threshold for stay
48. The principles guiding the grant of a stay of execution pending appeal are well settled. These principles are provided under Order 42 rule 6(2) of the Civil Procedure Rules, which provides that no order of stay shall issue unless the Court is satisfied that:
i. Substantial loss may result to the applicant unless the order is made;
ii. The application has been made without unreasonable delay; and
iii. Such security as the Court orders has been given for the due performance of the decree.
49. The conditions prescribed under Order 42 rule 6 are conjunctive and must all be satisfied before the Court can grant the relief sought. The Court of Appeal in Afyare Enterprises Company Ltd v Nyaribo t/a I.N. Nyaribo & Co. Advocates [2025] KECA 1819 (KLR) emphasized that the conditions under Order 42 Rule 6 are couched in mandatory terms and must be complied with before an order stay can issue.
50. The principles guiding the exercise of this jurisdiction are judicially well settled. In Butt v Rent Restriction Tribunal [1979] KECA 22, the Court of Appeal held that the discretion to grant stay must be exercised in a manner that ensures that an appeal, if successful, is not rendered nugatory.
51. Similarly, in Kenya Shell Ltd v Kibiru [1986] KLR 410, the Court emphasized that substantial loss is the cornerstone of the jurisdiction to grant stay.
52. On the first limb, there is no dispute that the application was filed promptly. The impugned ruling was delivered on 9 March 2026, and the present application was filed on 11 March 2026.
53. The Court is therefore satisfied that the application was brought without unreasonable delay, thereby meeting the first requirement under Order 42 Rule 6(2).
54. The second and most critical requirement is whether the Applicants have demonstrated that they will suffer substantial loss if stay is denied. In JAMES WANGALWA & ANOTHER V AGNES NALIAKA CHESETO [2012] KEHC 1094 (KLR), it was held that a substantial loss entails a state of affairs that would irreparably affect or negate the very core of the applicant’s case if a stay is not granted. The Court (F. Gikonyo J) stated that:
“…the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”
55. In the present case, the Applicants have contended that unless an order of stay is granted, the suit properties will be alienated, thereby rendering the intended appeal nugatory.
56. The evidence before the Court, however, demonstrates that one of the suit properties (LR. 1055/165 – Tamarind Karen & Dari Business Park) was sold at a public auction, transferred to the 10th Defendant, and possession taken. In respect of that property, the Applicants’ equity of redemption was extinguished upon the fall of the hammer. The law is clear that once such a sale has taken place, the remedy available to an aggrieved chargor lies in damages pursuant to Section 99(4) of the Land Act.
57. This position has been affirmed in authorities such as Simon Njoroge Mburu v Consolidated Bank Ltd [2014] eKLR and Bomet Beer Distributors Ltd v KCB Ltd [2005] eKLR, where the courts held that a completed sale cannot be undone through injunctive relief and any loss is compensable.
58. Accordingly, the Court finds that no substantial loss has been demonstrated in respect of that property.
59. However, the position is different with regard to the property that remains unsold (L.R. 11320/3 – Entim Sidai Wellness Sanctuary). In respect of that property, there exists a real risk that, absent preservatory orders, the Respondents may proceed to realize the security before the intended appeal is heard.
60. If that were to occur, the substratum of the appeal would be irreversibly altered, potentially rendering the appeal nugatory.
61. Accordingly, I find that substantial loss has been demonstrated, but only in respect of the property that has not yet been sold.
62. The third limb under Order 42 Rule 6(2)(b) of the Civil Procedure Rules is the requirement that:
“such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.”
63. The purpose of security was explained in Butt v Rent Restriction Tribunal [1979] KECA 22, where the Court held that in exercising discretion, the court must ensure that the rights of both parties are balanced so that the successful party is not prejudiced while the appeal is pending. Security serves to guarantee the performance of the decree should the appeal fail. It protects the successful litigant from the risk of non-recovery, and also ensures that the right of appeal is not abused as a mechanism for delay.
64. In the present case, the Applicants did not place before the Court any specific or concrete proposal for security. There was no offer to deposit a sum in court, no proposal for a bank guarantee, or an undertaking supported by evidence of financial capacity.
65. Ordinarily, such omission would be fatal to the application, given the mandatory nature of the requirement.
66. However, notwithstanding the Applicants’ failure, the Court retains a residual discretion to fashion appropriate conditions for stay where the justice of the case so demands. In this regard, the Court, in the exercise of that discretion, is guided by two considerations – the necessity to preserve the substratum of the appeal, and also the need to safeguard the Respondents’ interests.
67. Unlike cases involving purely monetary decrees, the present matter concerns charged properties and the exercise of the statutory power of sale. The risk to the Respondents obviously lies in the further delay in realization of the security and the accumulation of interest on the outstanding debt.
68. On the other hand, it is also undeniable that the Applicants face the risk of irreversible loss of unsold property. In balancing these competing interests, and noting that leave to appeal has already been granted, I find that the appropriate approach is to grant a partial stay, limited only to the preservation of the unsold suit property.
69. The Court notes that the unsold property remains charged in favour of the 2nd Defendant Bank, which retains its statutory rights thereunder. By virtue of that charge, the property is not freely disposable by the Applicants and remains subject to the Bank’s control, thereby substantially mitigating the risk of dissipation.
70. In those circumstances, the Court is satisfied that there is no real risk of the Respondents being left without recourse should the appeal ultimately fail.
71. In the circumstances, and purely in the interests of preserving the substratum of the intended appeal, I would allow the application on the following limited terms:
i. There shall be a temporary stay of execution of the ruling delivered on 9th March 2026, limited only to preservation of L.R No. 11320/3 Entim Sidai Wellness Sanctuary pending the filing and determination of the intended appeal.
ii. For avoidance of doubt, this order shall not operate to reverse or nullify any completed transfer relating to L.R No. 1055/165, Tamarind Karen, Dari Business Park.
iii. The Plaintiffs shall, within thirty (30) days, deposit security in the sum of Kshs. 50,000,000/= in an interest-earning joint account in the names of counsel for the parties, failing which the stay orders shall automatically lapse.
iv. The Plaintiffs shall file and serve the Record of Appeal within sixty (60) days from the date hereof, failing which the stay orders shall stand discharged automatically.
v. Costs of the application shall abide the outcome of the intended appeal.
72. It is so ordered.
DATED, SIGNED, AND DELIVERED AT NAIROBI
THIS 21ST DAY OF MAY 2026
HON. MR. JUSTICE MOSES ADO
Judge of the High Court
In the Presence of:
Moses C/A
Prof. PLO Lumumba SC
Paul Nyamodi
Grado Mabachi…………………………………..for the Plaintiff/Applicants
Wakhsi h/b for
Emmanuel Wetangula & Prof Githu Muigai SC…………for the 1st Respondent
Dr. Fred Ojiambo SC
Victor Njenga Kahura……………………..for the 2nd Respondent
Otieno h/b Wawire………………………. for the 6th Defendant
Ms. Kerubo h/b for Kiprono………………. for the 10th Defendant