1. The Court below delivered a ruling on 21st August 2025, by which it found that the preliminary objection raised by the respondent on 14th April 2025 had merit and dismissed the appellant's application, with costs, as an abuse of the process of the Court.
2. The Court found that the issues raised in the impugned application had already been decided in prior suits between the parties. The Court emphatically held that:
“The plaintiff in this case was the plaintiff in the lower Court case stated above and the appellant in the appeal cases, both in the High Court and in the Court of Appeal. The defendant herein was the 2nd defendant and the second respondent in the lower Court file and in the appeal cases, respectively. The issues in the former applications in the lower Court and in the appeal cases, respectively. The issues in the former applications in the lower Court and in the appeal cases were all based on the restraining orders for distressing for rent, which is still the issue in this case.”
3. The appellant/applicant was aggrieved by the said decision and filed an appeal to this Court. At the same he filed an application dated 26th August 2025 seeking several orders, among which was prayer 3 that seeks:
“3. That this honourable Court be pleased to grant an order of status quo restraining the Respondent, their agent, servants or anyone acting on their behalf from selling, disposing of or otherwise dealing with the household items of the Appellants pending the hearing and determination of the appeals, as the appellant has no standard rent arrears.”
The appellant also prayed that the costs of the application be provided for.
4. The application was considered on 1st September 2025 during the recess. However, no orders of stay were issued. The respondent filed a notice of preliminary objection, a replying affidavit, and grounds of opposition, in which it reiterated its position that the matter was res judicata or res sub judice and that the appellant was a rent defaulter, undeserving of the orders sought. The respondent also sought the dismissal of the application.
5. The application was canvassed by way of written submissions. In his submissions, counsel for the appellant urged that the Court should grant the prayer for an injunction pending appeal, as the conditions in the celebrated case of Giella v Cassman Brown & Co. Ltd (1973) EA 358 had been met, namely that there was a prima facie appeal with a probability of success, the damage the appellant could suffer couldn’t be adequately compensated by an award of damages, and, lastly, that the balance of convenience tilted in favour of granting the orders sought. The appellant's submissions are dated 25th October 2025.
6. The appellant also filed submissions dated 25th October 2025 in opposition to the preliminary objection.
7. On its part, the respondent filed written submissions dated 18th November 2025 in support of its preliminary objection and in opposition to the application. The respondent urged that the application was res judicata, as a similar application had been heard and determined. It prayed that the application be dismissed. Regarding the merits of the application, it was urged that it lacked merit, did not meet the conditions in the Giella case, and ought not to be allowed.
8. I will consider whether the application is res judicata first. What amounts to res judicata was discussed in the case of John Florence Maritime Services Ltd & another v Cabinet Secretary Transport & Infrastructure & 3 others [2021] KESC 39 (KLR), where the Supreme Court stated that:
“86. We restate the elements that must be proven before a court may arrive at the conclusion that a matter is res judicata. 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.”
9. In my view, the elements set out in the above decision are present in this case. The matter in dispute has been extensively litigated by the parties herein. The court has made determinations in more than 4 matters and rendered itself with finality. Accordingly, the matter is res judicata.
10. Having determined as foregoing, I need not consider whether the conditions in Giella v Cassman Brown exist. The application dated 26th August 2025 is hereby struck out with costs to the respondent.
11. It is so ordered.
Dated and signed in Nairobi, this 5th day of May 2026. Delivered virtually through Microsoft TEAMS.
2. The Court found that the issues raised in the impugned application had already been decided in prior suits between the parties. The Court emphatically held that:
“The plaintiff in this case was the plaintiff in the lower Court case stated above and the appellant in the appeal cases, both in the High Court and in the Court of Appeal. The defendant herein was the 2nd defendant and the second respondent in the lower Court file and in the appeal cases, respectively. The issues in the former applications in the lower Court and in the appeal cases, respectively. The issues in the former applications in the lower Court and in the appeal cases were all based on the restraining orders for distressing for rent, which is still the issue in this case.”
3. The appellant/applicant was aggrieved by the said decision and filed an appeal to this Court. At the same he filed an application dated 26th August 2025 seeking several orders, among which was prayer 3 that seeks:
“3. That this honourable Court be pleased to grant an order of status quo restraining the Respondent, their agent, servants or anyone acting on their behalf from selling, disposing of or otherwise dealing with the household items of the Appellants pending the hearing and determination of the appeals, as the appellant has no standard rent arrears.”
The appellant also prayed that the costs of the application be provided for.
4. The application was considered on 1st September 2025 during the recess. However, no orders of stay were issued. The respondent filed a notice of preliminary objection, a replying affidavit, and grounds of opposition, in which it reiterated its position that the matter was res judicata or res sub judice and that the appellant was a rent defaulter, undeserving of the orders sought. The respondent also sought the dismissal of the application.
5. The application was canvassed by way of written submissions. In his submissions, counsel for the appellant urged that the Court should grant the prayer for an injunction pending appeal, as the conditions in the celebrated case of Giella v Cassman Brown & Co. Ltd (1973) EA 358 had been met, namely that there was a prima facie appeal with a probability of success, the damage the appellant could suffer couldn’t be adequately compensated by an award of damages, and, lastly, that the balance of convenience tilted in favour of granting the orders sought. The appellant's submissions are dated 25th October 2025.
6. The appellant also filed submissions dated 25th October 2025 in opposition to the preliminary objection.
7. On its part, the respondent filed written submissions dated 18th November 2025 in support of its preliminary objection and in opposition to the application. The respondent urged that the application was res judicata, as a similar application had been heard and determined. It prayed that the application be dismissed. Regarding the merits of the application, it was urged that it lacked merit, did not meet the conditions in the Giella case, and ought not to be allowed.
8. I will consider whether the application is res judicata first. What amounts to res judicata was discussed in the case of John Florence Maritime Services Ltd & another v Cabinet Secretary Transport & Infrastructure & 3 others [2021] KESC 39 (KLR), where the Supreme Court stated that:
“86. We restate the elements that must be proven before a court may arrive at the conclusion that a matter is res judicata. 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.”
9. In my view, the elements set out in the above decision are present in this case. The matter in dispute has been extensively litigated by the parties herein. The court has made determinations in more than 4 matters and rendered itself with finality. Accordingly, the matter is res judicata.
10. Having determined as foregoing, I need not consider whether the conditions in Giella v Cassman Brown exist. The application dated 26th August 2025 is hereby struck out with costs to the respondent.
11. It is so ordered.
Dated and signed in Nairobi, this 5th day of May 2026. Delivered virtually through Microsoft TEAMS.