Background
1. The applicant filed a suit against the 1st respondent in CMCC No. 486 of 2018 and an appeal, being HCCA No 16 of 2018, which was settled through a consent dated 8th August, 2018. The failure to abide by the terms of the consent necessitated the 1st respondent to exercise its statutory power of sale, a move that made the applicant file the instant suit being HCCC NO. E034 OF 2022 together with a Notice of Motion application dated 11th November, 2022 where she sought temporary orders against the respondents.
2. The ruling of this court delivered on 22nd September, 2023 dismissed the said application on the grounds that the application was res judicata and that the applicant had failed to establish a prima facie case.
3. It is on the strength of that ruling that the applicant filed the instant application dated 28th September, 2023 which is brought under Sections 1A and 3A of the Civil Procedure Act, Cap 21 Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rule and Article 50 & 165 of the Constitution of Kenya 2010.
4. The application seeks a temporary injunction and inhibition orders pending the hearing and determination of this application and the appeal, as well as stay of execution of the Ruling delivered on 22nd September, 2023.
5. The application is based on the grounds on the face of it and supported by the annexed affidavit of Dr. ROSEMARY KINANU GITUMA sworn on 28th September, 2023. The gist of the application is that the orders sought are necessary to preserve the subject matter of the intended appeal which will otherwise be rendered moot. The applicant further avers that she has met the threshold for grant of stay of execution as provided for under Order 42 Rule 6 of the Civil Procedure Rules.
6. The application is opposed by the 1st respondent’s Legal Litigation Manager through the replying affidavit of HEDAYA MALESI sworn on 27th October, 2023. He states the prayers in sought in the instant application have been determined by the court in its ruling dated 22nd November, 2023 save for the prayer of stay of execution of the ruling dated 22nd November, 2023.
7. With respect to that prayer the 1st respondent submits that the order of the court was a negative order incapable of being stayed. He states the applicant’s right of redemption lapsed at the fall of the harmer during the public auction on 23rd August, 2022. He states that in case the appeal is successful the applicant can easily be compensated by way of damages.
8. The 2nd respondent also opposed the application by a replying affidavit sworn on 27th October, 2023 wherein he confirmed having attended an auction at which the 1st respondent rightfully exercised its power of sale. The 2nd respondent confirmed that he was the successful bidder to the property known as Shanzu Villas on L. R. No. 1870/111/450 at the price of Kenya shillings thirty-two million three hundred and fifty thousand (Kshs. 32,350,000/=).
9. The 2nd respondent further confirmed that despite having paid the full purchase price, the transfer of ownership was halted by an order of this court. He avers that the prayers sought in the instant application are res judicata as the consent dated 8th August, 2028 in Nairobi HCCA No. 18 of 2018 has not been set aside.
10. The 3rd respondent filed a replying affidavit sworn by JOSEPH M. GIKONYO on 27th October, 2023 wherein he avers that the stay of execution orders are not tenable as they are negative orders and that the claim against the 3rd respondents should be dismissed as the 3rd respondent was at all times an agent of the 1st respondent.
Analysis
11. Following directions of this Honourable Court the application was canvassed by way of written submissions which this court has carefully considered alongside the application, responses, authorities and the evidence filed by opposing parties. The first issue for determination is whether the application as filed is res judicata.
12. The respondents argue the instant application is res judicata as the prayers sought are similar to the prayers in the application dated 11th November, 2022.
13. The law pertaining to the doctrine of res judicata is captured under the provision of Section 7 of the Civil procedure Act which provides 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.
14. The above section bars subsequent proceedings when a matter has been finally adjudicated upon by a court of competent jurisdiction. It requires that the matter in issue the parties and subject matter to be similar and that there ought to be a final determination as far as the previous decision is concerned.
15. The instant application dated 28th September, 2023 seeks temporary orders against the property known as Shanzu Villas on L. R. No. 1870/111/450 following the public auction conducted by the 3rd respondent under the instructions of the 1st respondent. The application of 11th November, 2022 also sought similar orders in respect to the protection of the suit property Shanzu Villas on L. R. No. 1870/111/450. This court in its ruling of 22nd September, 2023 considered and found that the application dated 11th November, 2022 was res judicata.
16. In the circumstance this court having found that the orders found in the instant application are a replica of the application dated 11th November, 2022 I find the instant application is res judicata.
17. In the case of Omondi vs. National Bank of Kenya Limited and Others [2001] EA 177 the court held that, ‘parties cannot evade the doctrine of res judicata by merely adding other parties or causes of action in a subsequent suit.
18. On this ground I find that adding the prayer for stay of execution is just another way of introducing a new angle to a matter that has already been heard and determined on merit.
19. Be that as it may, even if I were to determine that issue for finality’s sake, the respondents have referred this court to the case of Western College of Arts and Applied Sciences v EP Oranga & 3 others [1976] eKLR where the court held as follows when dealing with a similar situation: -
“But what is there to be executed under the judgment, the subject of the intended appeal? The High Court has merely dismissed the suit, with costs. Any execution can only be in respect of costs… In the instant case, the High Court has not ordered any of the parties to do anything, or to refrain from doing anything, or to pay any sum. There is nothing arising out of the High Court judgment for this Court, in an application for a stay."
20. The disposition of this court’s ruling issued on 22nd September which the applicant seeks to stay reads as follows: - “The application lacks merit and is therefore dismissed with costs to the respondent”.
21. In alignment with the Western College of Arts case [supra], the instant decision is similar in that there was nothing that any party was ordered to do or refrain from doing, which therefore makes it a negative order. There is nothing in particular for the court to stay in that order and the prayer for stay of execution is therefore untenable.
22. Even then, and without revisiting the issues that have already been litigated on, I do not agree with the applicant that by failing to grant the stay orders the appeal herein will be rendered moot. I say so noting that should the applicant be successful in her appeal, an award for damages is adequate compensation for the loss and costs that she will have incurred.
23. On this premise it is also my finding that there will be greater prejudice to be suffered by the 2nd respondent who despite being a 3rd party purchaser for value and in good faith having paid the full purchase price for the suit property has been hanging in an incomplete transaction and is therefore deprived of both his capital and the subject matter of his investment.
24. For these reasons it is my finding that the applicant has not met the required threshold to warrant orders for stay of execution under Order 42 rule 6 of the Civil Procedure Rules.
Disposition
25. The result is that the application dated 28th September, 2023 lacks merit and is hereby dismissed with costs to the respondents.